Howland v. Town of Plymouth

• Decision Date: 07 March 1946
• Parties: GORDON L. HOWLAND v. TOWN OF PLYMOUTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 321

65 N.E.2d 535

GORDON L. HOWLAND v. TOWN OF PLYMOUTH.

Supreme Judicial Court of Massachusetts, Plymouth.

March 7, 1946

January 8, 1946.

Present: FIELD, C.

J., QUA, DOLAN RONAN, & WILKINS, JJ.

Landlord and Tenant, Assignment of lease. Assignment.

The taking effect of a written assignment of a lease by the lessee, which stated that it was in "consideration of the agreement between" the lessee and the assignee "arising out of an offer" by the lessee "and an acceptance," was subject to a condition precedent that the lessor should consent to the assignment where it appeared that the offer so accepted contained the provisions that the "assignment . . . is subject to the condition that said assignment is consented to by the" lessor and that otherwise it "is to be null and void."

The lessor in a lease of real estate, which contained a covenant that the lessee would not assign the lease without the consent of the lessor being first obtained and an express condition that in case of breach of any of the covenants in the lease the lessor might enter and determine the lease, had no right to enter and dispossess the lessee by reason of his having made an assignment of the lease subject to the condition precedent that "said assignment is consented to by" the lessor, although the assignee had taken possession of the premises for a time and the consent of the lessor never had been obtained.

BILL IN EQUITY filed in the Superior Court on September 1, 1944. The case was heard by Sullivan, J.

G. R. Farnum, for the plaintiff. A. P. Richards, for the defendant.

QUA, J. By this bill the plaintiff seeks relief against an entry made by the defendant on April 28, 1944, for the purpose of terminating two leases upon premises adjoining each other, both located on the town wharf in Plymouth. The plaintiff appeals from a final decree in favor of the defendant. The evidence is reported.

Both leases were given by the defendant to the plaintiff, one on September 16 1940, and the other on February 16, 1942. Both were to expire on January 1, 1951, with the privilege of renewal for a further term of ten years. Each lease contained a covenant that the lessee would not assign the lease without the consent of the lessor being first obtained and an express condition that in case of breach of any of the covenants the lessor might enter and determine the estate created and expel the lessee and those claiming under him. The entry was made for alleged violation by the plaintiff of the covenants against assignment. This appears from a notice given by the defendant to the plaintiff three days after the entry. In this case we need consider only the alleged breach of covenant by the plaintiff in assigning the leases without the consent of the defendant. Atkins v Chilson, 9 Met. 52, 62. Boston Elevated Railway v. Grace & Hyde Co. 112 F. 279, 286. Compare Markey v. Smith, 301 Mass. 64 , 73-74.

In reference to the alleged assignments, it appeared that on March 6, 1943, the plaintiff made to Mayflower Processing Company an offer in writing to assign the two leases to that corporation on terms set forth in detail in the offer. The offer contained this provision, "The assignment of the leases from the Town of Plymouth, above referred to, is subject to the condition that said assignment is consented to by the Town of Plymouth. Otherwise said assignment is to be null and void." On March 8 Mayflower Processing Company accepted the offer by unanimous vote of its directors and stockholders. Under date of March 11 the plaintiff executed an assignment under seal of both leases in the following form: "In consideration of $1.00 and other valuable consideration, and in further consideration of the agreement between the undersigned and the Mayflower Processing Co. arising out of an offer dated 6th day of March, 1943 and an acceptance dated 8th day of March, 1943 I the undersigned do hereby sell, transfer, assign and set over unto the Mayflower Processing Co. all my right, title and interest in and to the leases hereto annexed and made a part hereof and marked exhibits `A' and `B.' In witness whereof I have hereunto set my hand and seal this 11th day of March, 1943. Gordon L. Howland." Either before or after March 11 the plaintiff requested the selectmen to consent to the assignments, but without success. A written request on July 10 was equally without result. The town has never consented to the assignments. Nevertheless, the Mayflower company took possession of the premises and carried on business there during May and June of 1943, and then "folded up" for reasons not appearing. At some time thereafter the plaintiff resumed possession. The plaintiff paid all the rent falling due on both leases covering a period of time extending (in advance) beyond the date of hearing of the case. There is nothing to show that the Mayflower company concerned itself with rent in any way.

In our opinion there was never any final completed assignment of the leases which had the effect of transferring the plaintiff's title in the leaseholds to the Mayflower company. The contract to assign made on March 8, 1943, evidenced by the terms of the plaintiff's written offer of March 6, made the taking effect of the assignment expressly conditional upon the consent of the town. The written assignment itself was executed only three days after the contract to assign was made. It contains a reference to that contract, and seems...