Gorin v. Stroum
| Decision Date | 14 September 1934 |
| Citation | 288 Mass. 6 |
| Parties | WILLIAM GORIN v. BERNARD STROUM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
June 25, 1934.
Present: RUGG, C.
Landlord and Tenant, Assignment of lease, Liability for rent. Mortgage, Of real estate. Pleading, Civil, Answer.
A corporation, in possession of land as assignee of a lease which was prior to a mortgage of the land, gave a note secured by an unsealed assignment of the lease and other collateral. The payee was elected an officer of the corporation, and thereafter for several months until a December 28 he countersigned all its checks and had his daughter in its office "to look after his interests." On December 23 he foreclosed upon the collateral and purchased it, and on December 28 sold his interest in the lease to one who then commenced to occupy the leased premises. The mortgagee took possession of the premises for breach of condition on December 27, notified the purchaser of the lease to pay to him the rent for December, which was due December 31, and received payment thereof from the purchaser. At the hearing by a judge without a jury of an action for the December rent by the owner of the leased premises against the one of whom the lease had been assigned as collateral, the judge found that the defendant never had been in possession of the leased premises. Held that
(1) The evidence did not as a matter of law require a finding that the defendant had been in constructive possession of the leased premises from the time of the assignment of the lease to him until December 28; the finding by the judge, that the defendant never had been in possession of the leased premises, was conclusive;
(2) G. L. (Ter Ed.) c. 186, Section 8, pertaining to apportionment of rent, was not applicable;
(3) The mortgage, although subject to the lease, constituted an assignment of the owner's interest in the lease;
(4) In the circumstances, the mortgagee was entitled to the rent falling due on December 31;
(5) The plaintiff could not recover.
In the action above described, the defence, that the rent in question was not apportionable, was not one which the defendant was required to plead in his answer in order to rely upon it.
CONTRACT. Writ dated January 12, 1933. The action was heard in the Superior Court by Greenhalge, J., without a jury. Material evidence, and rulings requested by the plaintiff and refused, are described in the opinion. The judge found for the defendant. The plaintiff alleged exceptions.
The case was submitted on briefs.
H. I. Morrison, T.
Morrison & M. S. Glaser, for the plaintiff.
J. H. Samuel, for the defendant.
This is an action of contract to recover rent for the month of December, 1932, brought by the assignee of the lessor against an assignee of the lessee. The action was heard by a judge of the Superior Court, who refused to give rulings requested by the plaintiff and found for the defendant. The case is before this court on exceptions duly saved by the plaintiff to the judge's refusal to instruct himself as requested.
The facts in all material respects are undisputed, and are in substance as follows: In 1916, one Simon Goldsmith, owner of a building on Washington Street in the Roxbury district of Boston, executed a lease of said premises to one George C. Dutton for a term of twenty years. On November 23, 1916, this lease was assigned by said Dutton to Dutton's Roxbury Store Corporation. On June 20, 1923, said lessor, Simon Goldsmith, conveyed the above described premises subject to the lease and assigned the lease to one Ruth Heller. Concurrently a mortgage, subject to the lease, was placed with and given to the Home Savings Bank. On the same date Simon Goldsmith took back as security for the payment of part of the purchase money, subject to the lease and to the mortgage to the Home Savings Bank, a second mortgage on each of three parts of the property, which counsel have agreed for the purposes of the case are to be treated as a single parcel. On January 16, 1931, the said premises were acquired by the plaintiff, William Gorin, by deed from Heller, and the lease was assigned to Gorin subject to the first and second mortgages.
On June 1, 1932, Bernard Stroum, the defendant, made a loan to Dutton's Roxbury Store Corporation which matured on October 24, 1932. In consideration of this loan and as security for the same the corporation gave Stroum a collateral note, an assignment of all the capital stock and an alleged assignment of said lease, which reads: On the same day, June 1, 1932, the defendant was elected assistant treasurer of the Dutton's Roxbury Store Corporation, and from then until December 28, 1932, countersigned all checks of said corporation and placed his daughter in the office of the corporation "to look after his interests." She remained there until the corporation was forced out of business about December 28, 1932. The defendant foreclosed upon the securities held by him under the collateral note on December 23, 1932, and bought in the collateral described in the note. On December 28, 1932, he sold his rights under the lease for $1,500, the instrument of transfer reading:
The record shows that Barron, Craft and Gabovitch had purchased the stock of merchandise of the corporation on December 28, 1932, and had started to occupy the premises; that they had heard that the rent was due for the month of December, 1932, on the last day of that month; and that they had received a letter from the holder of the second mortgage which, omitting caption and signature, reads:
It is not disputed that the holder of the second mortgage took possession of the premises described in the mortgage for breach of condition thereof on December 27, 1932, nor that on December 31, 1932, Barron and his associates paid by check the full December rent to the second mortgagee in possession of the premises.
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