Consumers' Ice Co. v. Bixler

• Decision Date: 03 December 1896
• Citation: 35 A. 1086,84 Md. 437
• Parties: CONSUMERS' ICE CO. v. BIXLER ET AL.
• Court: Maryland Court of Appeals

35 A. 1086

84 Md. 437

CONSUMERS' ICE CO. v. BIXLER ET AL.

Court of Appeals of Maryland

December 3, 1896

Appeal from superior court of Baltimore city.

Action by William H. H. Bixler & Co. against the Consumers' Ice Company. There was a judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, FOWLER, ROBERTS, and BOYD JJ.

Edgar H. Gans and B. H. Haman, for appellant.

Thomas M. Lanahan and Frank Gosnell, for appellees.

BOYD J.

The questions presented by this appeal were raised by a demurrer to the declaration, which was overruled by the court below and judgment entered for the appellees, the plaintiffs in the case. The facts are set forth in full in the declaration, and we are called upon to determine the liability of the defendant, under the following circumstances: On December 31 1889, the appellees leased to Jacob Frederick & Sons a lot of ground in the city of Baltimore for the term of 10 years beginning on the 1st day of January, 1890, "subject to the annual rental of three thousand dollars, payable in quarterly installments on the first day of April, July, October, and January." On December 21, 1892, Frederick & Sons executed an assignment of the lease to Charles W. Morse, who on the next day assigned it to the defendant. On the 30th day of December, 1892, an agreement was entered into between Bixler & Co., of the first part, Frederick & Sons, of the second part, and the appellant, of the third part, wherein, after reciting the original lease and the above-mentioned assignments, the following provisions and agreements were made: "Now, therefore, these presents witness that for and in consideration of the premises, and the mutual covenants and agreements herein contained, and the further sum of one dollar to the parties of the first part by the party of the third part in hand paid, the said parties of the first part do hereby assent to the said two assignments of said leasehold interest, above referred to, to Charles W. Morse, and to the Consumers' Ice Company, of Baltimore, respectively. And it is further agreed between the parties of the first part and the party of the third part that all the covenants and agreements in the original lease of William H. H. Bixler et al., trading as aforesaid, to William T. Frederick et al., trading as aforesaid, shall be and remain in full force and effect between the parties of the first part and the party of the third part hereto. It is, however, expressly agreed, as stipulated, that the parties of the second part, in consideration of one dollar paid them by the parties of the first part, shall also remain bound by all the covenants and agreements contained in said original lease." Prior to this the lessors had not given their consent to the assignments, and they were made without their knowledge. The defendant accepted the assignments, entered into possession of the premises, and on December 13, 1895, assigned the lease to Anthony G. Hamburger, who accepted it without the knowledge or consent of the plaintiffs. This suit was brought to recover the quarter's rent falling due January 1, 1896, which was after the defendant assigned the premises to Hamburger.

The liability of an assignee of a term to the lessor rests upon the privity of estate, unless he enters into some contract with him, and only continues so long as that exists. As the defendant assigned the premises before the rent sued for was due, its liability as a mere assignee of the term had ceased. Hintze v. Thomas, 7 Md. 346; Donelson v Polk, 64 Md. 501, 2 A. 824. And if the agreement of December 30, 1892, had not been executed, the case would be free from doubt. But, as we have seen, it was agreed that all the covenants and agreements in the original lease should remain in full force and effect between the appellant and appellees. It therefore becomes necessary to ascertain the extent of the liability of the original lessees. A lessee may be responsible for rent, either by virtue of an express covenant to pay it, or by reason of the privity of estate. If there be no such covenant, then the liability of the lessee rests upon privity of estate alone. Where there is such a covenant, the lessee cannot terminate his liability by an assignment of the lease, although the lessor may accept rent of the assignee, or give his consent to the assignment. If, however, there be no express contract to pay the rent, the lessee's liability will cease, if the lessor consents to an assignment; and such assent may be inferred by his accepting rent of the assignee, or other act recognizing him as his tenant. That is because the privity of estate is destroyed, and, as there is no privity of contract between them, there is no longer any obligation, express or implied, on the lessee. But, in order to destroy this privity of estate between lessor and lessee, there must be the concurrence of the landlord. It is not correct to state, as a rule of law, that a lessee, who has not made an express covenant to pay rent, may discharge himself of all future responsibility by assigning the lease. Take the lease before us, for example, and let us assume that there is no express contract in it to pay rent. The lessors have undoubtedly bound themselves for 10 years, if there be no default on the...