Dougherty v. Matthews

• Decision Date: 30 June 1865
• Citation: 35 Mo. 520
• Parties: JAMES S. DOUGHERTY, Respondent, v. LEONARD MATTHEWS, Appellant.
• Court: Missouri Supreme Court

35 Mo. 520

JAMES S. DOUGHERTY, Respondent,

v.LEONARD MATTHEWS, Appellant.

Supreme Court of Missouri.

June Term, 1865.

Appeal from St. Louis Land Court.

The petition was as follows:

“In St. Louis Land Court, October Term, 1861. James S. Dougherty, plaintiff, v. Leonard Matthews, defendant. Plaintiff, by attorney, states that on the 1st day of August, 1859, one Edward A. Tudor leased of plaintiff, for the term of three years from the said 1st day of August, 1859, the store at the northeast corner of Almond and Fourth streets, in St. Louis, Mo., at the yearly rent of four hundred and fifty dollars, payable monthly, in equal sums of 37 1/2 dollars, the first payment to be made on the first of September, 1859, and on the first of each month thereafter; that said lease was in writing, and signed by plaintiff and said Tudor, and that said lease was not to be assigned without the consent in writing of said plaintiff. Plaintiff alleges that on the 5th of April, 1860, the said Tudor assigned said lease to the defendant, Leonard Matthews, who accepted said assignment and thereby became liable for said rent; that thereafter said defendant desired to assign said lease to one _____ Greenleaf, and requested the consent of plaintiff therefor, which plaintiff gave on the express condition that he, said defendant, would assume the prompt payment of the rent reserved in the foregoing above-mentioned lease to said plaintiff; and said defendant accepted said condition in consideration of said consent, and on the 26th of April, 1860, assigned said lease to said _____ Greenleaf, as so authorized by plaintiff, and thereby said defendant became liable, by said undertaking, to pay said rent as it became due by the terms of said lease. Plaintiff states that on the 1st of September, 1860, there had become due to plaintiff from defendant, under said lease and undertaking, six months' rent on said premises, amounting to 225 dollars, which has been demanded of defendant and has not been paid, and is now due and unpaid, and for which plaintiff now asks judgment with interest.”

Holliday, for appellant.

I. The court erred in admitting the “written consent” of Dougherty to Matthews in evidence on the part of the plaintiff, because of the variance between that and the “written consent” or undertaking declared on in the petition.

“If any part of the contract proved should vary materially from that which is stated in the pleadings, it will be fatal.” (1 Greenl. Ev. §§ 66, 68.) The allegation in the petition is that Matthews “assumed” the payment of the rent; the written consent offered in evidence stated that Matthews “assured” the prompt payment of the rent.

II. The Land Court did not have jurisdiction. The only clauses, under the act establishing the Land Court, under which jurisdiction can be claimed, are two: the one giving said court jurisdiction of all actions “for enforcing the rights and obligations of lessors and lessees and their respective assignees,” the other granting that court “concurrent jurisdiction with the Circuit Court for the collection of demands whose consideration is real estate or any interest therein.”

The relation of the parties to each other gives the jurisdiction in the former case -- it is “for enforcing the rights and obligations of lessors and lessees and their respective assignees,” and in the latter clause the subject matter gives the jurisdiction, “the collection of demands whose consideration is real estate or any interest therein.”

a. Is this suit for the purpose of “enforcing the rights and obligations of lessors and lessees and their respective assignees?”

The defendant is not a lessee; Tudor was the lessee. He is not lessor; plaintiff was the lessor. The only question left under this clause is, was defendant an “assignee” of the lessee at the time this suit was instituted, and does the plaintiff seek to charge him as assignee of the lessee? Is he sued under the obligations he incurred as assignee, and, if he is, is he liable as assignee.

The appellant insists that the petition does not charge him as assignee, but by virtue of the new undertaking in “assuming” to pay the rent. Still the defendant is not liable as assignee. An assignee of a lease is only liable by privity of estate; to discharge himself from all liability he has only to assign over. (McKee v. Angelrodt, 16 Mo. 283; Armstrong v. Wheeler, 9 Cow. 88; Tayl. Landl. & Ten. § 680; Pitchey v. Lovey, 1 Show. 340; 1 Sand. 56; Smith's Landl. & Ten. 293, 294, n.)

An assignee is not liable for rent accruing after an assignment, even though such assignment is wrongful. (Paul v. Nurse, 2 M. & R. 525; Odell v. Wake, 3 Camp. 394; 1 C. & M. 640; 3 Tyr. 637; Collins v. Couch, 13 Jur. 361.)

An assignee may discharge himself from all liability for subsequent breaches, both as regards rent and other covenants, by assigning over (Hurst v. Rodney, 1 Wash. C. C. 375; 12 Mod. 371); as, for instance, to a beggar (2 Atk. 546; Taylor v. Shum, 1 B. & P. 21); or to a femme covert(Barnfather v. Jordan, 2 Dougl. 452); or to a person on the eve of quitting the country forever, provided the assignment be executed before his departure. (Onslow v. Corrie, 2 Madd. 330.)

And this is the case, even though the assignee receive a premium from the assignor as an inducement to accept the transfer (2 Atk. 546); because the assignment destroys the privity of estate, which was the only ground upon which the assignee was liable; and though the lessee's liability on his covenant to pay rent subsists during the continuance of the lease, there is no personal confidence in the assignee of the lessee. The lessee remains liable by privity of contract. (Tayl. Landl. & Ten. § 452.)

At the time the rent sued for accrued, the defendant had assigned over to Greenleaf; having assigned over, there was no privity of estate between the plaintiff and defendant, and that is the only ground upon which he could be liable as “assignee.”

b. Is the “consideration of the plaintiff's demand real estate, or any interest therein?”

If the defendant is liable at all, he is only liable by reason of his special contract, the “written consent,” &c. he is not liable at all on the lease. (Bain v. Clark, 10 Johns. 424; Smith v. Mapleback, 1 T. R. 441.) In Bain v. Clark, the lessee surrendered before the year was out, holding himself liable to pay the year's rent, and agreeing that the lessor might take all lawful means for the recovery thereof according to the lease. This surrender was endorsed in the above terms on the lease.

The “written consent” of Dougherty, that Matthews might assign the lease to Greenleaf, was the only consideration for the special agreement by Matthews to assure the payment of the rent. This was not real estate or any interest therein. No interest in real estate passed out of Dougherty or was acquired by Matthews by said consent. Matthews had the power to assign without the written consent of Dougherty. His powers were not enlarged by that consent.

Even a lessee may assign without license, and the assignment will be valid if he was restrained from assigning by covenant only, the lessee only committing breach of covenant; the assignment being void if the condition be that the lease shall cease in case the lessee assign. (Furl. Landl. & Ten. 557; Paul v. Nurse, 8 B. & C. 488; 2 M. & Ry. 525, S. C.)

Again, even if the plaintiff had a right to recover rent from the defendant, this court would not have jurisdiction. (Adams v. Blecker, 33 Mo. 403.)

III. There was no consideration for the promise of defendant to “assure” the rent.

The plaintiff's consent was of no value to the defendant; the plaintiff had no power to prevent Matthews from assigning the lease, nor could he have maintained any action against Matthews had he assigned without such consent. Matthews, while he held the lease, was not liable for rent by privity of contract; he was only liable on account of privity of estate, and, as soon as he assigned over, that privity of estate was destroyed.

If the landlord license one assignment, the condition is gone forever, and the assignee may afterwards assign without license (Smith's Landl. & Ten. 117, marg.; Furl. Landl. & Ten. 556; Tayl. Landl. and Ten. § 410; Dumpor's case, 4 Co. 119; Brummell v. McPherson, 14 Ves. 173; Doe v. Bliss, 4 Taunt. 736; Am. Lea. Ca. 87; Bleecker v. Smith, 13 Wend. 530; Dakin v. Williams, 17 Wend. 447; Jones v. Jones, 12 Ves. 186; Dickey v. McCulloch, 2 W. & S. 100; 1 V. & B. 191; 2 Dyer, 152; Whitchcock v. Fox, 1 R. Rep. 390; 2 Bulst. 290); because the covenant not to assign without license, in which “assigns” are not mentioned, does not run with the land, for it obviously contemplates that the land shall not pass into the possession of an assignee. (1 Wm. Saund. 288 b.; Bally v. Wells, 3 Wills, 25; Doe v. Peck, 1 B. & Ad. 36; 20 E. C. S. R. 417; Coote's Landl. & Ten. 291; Smith's Landl. & Ten. 119, n.; 1 Smith's Lea. Ca. 5th Am. Ed. 139; Spencer's Case, 5 Coke, 161; Hazlehurst v. Kewick, 6 S. & R. 446; Furl. Landl. & Ten. 570; Tayl. Landl. & Ten. § 413; Phillips v. Hoare, 2 Atk. 219; Wilmot, 344; 10 East, 130.)

The lease from Dougherty to Tudor contained this clause: “That he” (the said lessee) “will not assign this lease, nor underlet the whole or any part of the premises to any person or persons * * * without the consent in writing of the said lessor, his heirs or assigns;” so that the lessee does not covenant that his “assigns” shall not assign without license.

What benefit to Matthews was Dougherty's consent? He had the right to assign without that consent, without incurring any liability. What detriment to Dougherty was brought about by giving the consent? None at all. What is a good and valuable consideration? In the language of the books, “the thing done must have been advantageous to the defendant, or detrimental, or troublesome, or inconvenient to the plaintiff, and must be such an act or service as the law recognizes as good legal consideration for a...