Carlton Chambers Co. v. Trask

• Decision Date: 23 November 1927
• Citation: 158 N.E. 786,261 Mass. 264
• Parties: CARLTON CHAMBERS CO. v. TRASK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 264

158 N.E. 786

CARLTON CHAMBERS CO.

v.TRASK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 23, 1927.

Report from Superior Court, Suffolk County; H. A. Dubuque, Judge.

Action of contract by the Carlton Chambers Company against Mary S. Trask and another.Verdict was directed for plaintiff, and case reported.Judgment for plaintiff.L. M. Friedman, L. B. King, and Friedman, Atherton, King & Turner, all of Boston, for plaintiff.

H. V. Cunningham, of Boston, for defendants.

SANDERSON, J.

The plaintiff, by two written leases, let a part of its building in New York to the defendant and is seeking to recover rent and charges for electric current in accordance with the terms of the leases.At the close of the evidence a verdict was directed for the plaintiff and the case reported.The amount of the verdict is not in dispute if the defendant is liable on the covenants in the leases, but it is contended that the jury could have found that the defendant had been relieved from her obligations under those covenants.

Both leases by their terms were to end September 30, 1922; the annual rental was $6,480, payable monthly, and in addition the lessee was to pay for electric current.The defendant, whose place of business was in Boston, opened a second store in the leased premises and carried it on from the beginning of the tenancy in 1918 until about June, 1919, when she sold her New York business with the store fixtures, and sublet the leased premises by oral agreement to Stremmell, Inc., in whose behalf Mrs. Stremmell conducted the negotiations.The defendant's sole place of business thereafter was in Boston.Before the sale to Stremmell, Inc., was consummated, the defendant asked one Plummer (who described himself as managing agent for the plaintiff) if she might be released from her obligations under the lease.This request was refused but permission was given the defendant to sublet with the understanding that the defendant should continue to be responsible for the rent, and upon this basis the arrangement with Stremmell, Inc., was concluded.The defendant's understanding of her continued obligation under the leases was expressed in a letter dated June 28, 1919, in which she requested permission to sublet and stated that she would expect to be responsible for the rent during the term covered by her leases.For a few months after the subletting, bills for rent were paid by the defendant in Boston and she collected from her subtenant in New York.In September, 1919, the defendant wrote Stremmell, Inc., requesting it to arrange with the landlord to have bills sent directly to it in the future.The plaintiff wrote the defendant stating in substance that the request had been received but that it declined to comply for the reason that it did not care to recognize the defendant's subtenant.

The defendant offered testimony tending to prove that about November, 1919, she asked Plummer to render bills to Mrs. Stremmell on the premises and to accept her check, and to let the defendant know by the tenth of the month if Mrs. Stremmell did not pay; that Plummer said he would do this if it would be easier for the defendant; and that she heard nothing more from him until June, 1922, when she received from the plaintiffa bill for overdue rent and charges for electric current amounting to $6,162.86.The testimony of Plummer tended to show that there was no request by the defendant that she be notified of nonpayment of the rent by Mrs. Stremmell; that the request that bills rendered Mrs. Trask be sent in care of Mrs. Stremmell in New York was made in order to avoid the inconvenience to her Boston office, and he consented to send bills to Mrs. Trask, care of Mrs. Stremmell, at the New York place of business with the understanding that the plaintiff's rights under the leases should not be prejudiced.He testified that he tried to collect the money from Mrs. Stremmell by writing and by asking for it personally, and that she paid a part of it and also made promises to pay which were not kept; that all bills from November, 1919, to August 1, 1922, were sent in the form above suggested.The bills introduced in evidence were in this form and no one testified to seeing bills covering this period made out in any other form.There was no evidence to contradict the testimony of the defendant that she did not know until she received the notice in June, 1922, that Stremmell, Inc., had not paid the rent as it had accrued.

[1][2][3] The submission of bills by a landlord to a lessee's subtenant and collecting rents from such subtenant would not, in and of itself, create the relation of landlord and tenant between the lessor and sublessee, and would not relieve the lessee from her covenant to pay rent.Haley v. Boston Belting Co., 140 Mass. 73, 2 N. E. 785;Lennox v. Haskell, 253 Mass. 334, 148 N. E. 811;36 C. J. 378.Even in the case of an assignment by the lessee, the collection of rents from the assignee by the lessor does not relieve the lessee from his covenant to pay rent.Both may be liable for the rent.Wall v. Hinds, 4 Gray, 256, 64 Am. Dec. 64;Dwight v. Mudge, 12 Gray, 23, 25;Greenleaf v. Allen, 127 Mass. 248, 253;Johnson v. Stone, 215 Mass. 219, 102 N. E. 366;Taylor v. Kennedy, 228 Mass. 390, 392, 117 N. E. 901.In Way v. Reed, 6 Allen, 364, at page 369, the court said:

‘Doubtless it is competent for a lessor to enter into such stipulations with an assignee as to accept him as sole tenant, and to absolve the original lessee from his contracts.But an intent to create a new contract and to annul the lease as against the original lessee must be clearly shown; otherwise the rule of law by which the...