Farrington v. Kimball

• Decision Date: 28 February 1879
• Citation: 126 Mass. 313
• Parties: Isaac Farrington v. David F. Kimball
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 313

Isaac Farrington v. David F. Kimball

Supreme Court of Massachusetts

February 28, 1879

Argued March 19, 1878

Suffolk. Contract for use and occupation of a store in Boston from April 27 to September 27, 1876. Answer, a general denial. Trial in the Superior Court, without a jury, before Aldrich J., who allowed a bill of exceptions in substance as follows:

Joseph H. Hunneman, on September 1, 1871, executed a written lease of the store in question to the plaintiff, for the term of five years from that date. By the terms of the lease the lessee agreed to pay as rent $ 600 yearly in equal monthly installments, during the term and for such further time as he, or any person claiming under him, should hold the premises. The lessee also covenanted not to assign the lease without the assent of the lessor in writing. In 1872, the plaintiff assigned in writing all his right, title and interest in the lease to Farrington and Kent, who in 1873 made a similar assignment to G. F. Farrington, who in 1875 made a similar assignment to William A. Thomes. On April 27 1876, Thomes was adjudged a bankrupt, and, on June 14, 1876 the defendant was appointed assignee of his estate. From April 27 to June 14, 1876, the messenger in bankruptcy was in occupation of the store, and, from the latter date to September 27, 1876, the defendant was in occupation of it.

The plaintiff paid Hunneman the rent of the store for the months of March, April and May 1876; and Hunneman has not released the plaintiff from his liability to pay all the rent due and unpaid. Hunneman did not assent to any of the above assignments of the lease, and at no time recognized the defendant as his tenant or claimed rent of him.

The defendant asked the judge to rule that the plaintiff had no claim against the defendant; that if the plaintiff could have a right of action against the defendant, it would only arise when the plaintiff had paid Hunneman the rent due under the lease, and thus extinguished Hunneman's right against the defendant.

The judge refused so to rule; ruled, as matter of law, that, on the facts found, the plaintiff could maintain the action; and found for the plaintiff in the full amount claimed. The defendant alleged exceptions.

Exceptions sustained.

D. F. Kimball, pro se.

J. P. Farley, Jr., for the plaintiff.

Endicott, J. Ames & Morton, JJ., absent.

OPINION

Endicott

When a lessee assigns his entire interest in the estate, he is still liable to the lessor on his covenants to pay rent; and the assignee is also liable to the lessor for the performance of all the covenants which run with the land by virtue of the privity of estate created by the assignment. Wall v. Hinds, 4 Gray 256. Blake v. Sanderson, 1 Gray 332. Sanders v. Partridge, 108 Mass. 556. Both are liable, and the lessor has the option to sue either. When the lessee is obliged to pay, by reason of his covenants to pay rent, the question arises, what are his rights against the assignee who has not performed his duty, but has taken the whole benefit of the lease.

It was said in general terms by Chief Justice Shaw in Patten v. Deshon, 1 Gray 325, 330, that "the first lessee, notwithstanding the assignment remains liable for the rent, in virtue of his express covenants, if the lessor elects so to hold him, in which case he will be entitled to the rent from the assignees." The leading case in England is Burnett v. Lynch, 5 B. & C. 589, where it was held that a lessee, who had assigned the lease by a deed poll, and had been compelled to pay damages to the lessor for breach of the covenants of the lease while his assignee was in occupation, could maintain an action against the...