Marcelle, Inc. v. Sol & S. Marcus Co.

• Decision Date: 27 February 1931
• Citation: 175 N.E. 83,274 Mass. 469
• Parties: MARCELLE, Inc., v. SOL & S. MARCUS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 469

175 N.E. 83

MARCELLE, Inc.,

v.SOL & S. MARCUS CO.

Supreme Judicial Court of Massachusetts, Worcester.

Feb. 27, 1931.

Appeal from Superior Court, Worcester County; Winifred H. Whiting, Judge.

Suit by Marcelle, Inc., against Sol & S. Marcus Company, with a cross-bill by defendant. From the decree, both parties appeal.

Modified and affirmed.S. A. Seder and S. Lurier, both of Worcester, for plaintiffs.

A. M. Hillman, of Worcester, for defendant.

BUGG, C. J.

This is a suit under St. 1929, c. 186, for a decree interpreting a written ‘Agreement and Lease’ betweenthe parties. The defendant filed a cross bill. At the trial in the superior court and at the argument in this court, no questions were raised by either party relative to pleadings, to procedure under said chapter 186, or to the right of the court to determine the issues raised. The case is considered on the footing presented by the parties and no other questions have been regarded.

The trial judge made findings of fact in writing. Thus it appears that there are three matters in controversy. The first is whether the plaintiff has the right to sublet. The facts pertinent in that connection are these: The defendant is the lessee of an entire building, several stories in height, in the part of Worcester devoted to retail trade, which it uses for conducting the business of selling furs, clothing and other allied articles. In September, 1927, the parties executed a contract in writing entitled ‘Agreement and Lease.’ It related to carrying on a millinery business within the defendant's building. Ostensibly and so far as concerned the public, this was to be carried on by the defendant as a department of its business, although in truth it was to be the business of the plaintiff. This department occupied a relatively small portion of the store of the defendant. As a part of the agreement, the plaintiff was given a lease of the portion to be occupied by it. The title of the document signed by the parties is not without weight. It was not merely or chiefly a lease. It was primarily an agreement establishing a commercial relationship of some intricacy and importance to both parties. It was a comprehensive instrument covering in considerable detail the rights, obligations and conduct of the parties concerning the business to be undertaken by the plaintiff within the larger store of the defendant. It is obvious, from the terms of the agreement and lease and from the situation of the parties, that necessarily their relations must be close and intimate and involve no small degree of mutual confidence and harmonious contact. It is provided in the agreement and lease, in paragraph 15, that ‘this agreement cannot be assigned in whole or part by the lessee without the written consent of the lessor,’ and, in paragraph 27, that ‘this lease and all the covenants hereunder shall bind the lessor and its successors in title, and shall bind any and all assignees of the lessee provided the lessor shall first have given its written approval to any assignment made or attempted to be made by the lessee herein.’

The distinction between an assignment and a sublease of demised premises is well established. A transfer by the lessee of the whole or a specific part of the leasehold estate for the residue of the term is an assignment. A transfer by the lessee of the whole or a specific part of the leasehold estate for a part of the term is a sublease. Even if the instrument be in the form of a sublease, it will operate as an assignment if the whole estate is conveyed. Patten v. Deshon, 1 Gray, 325, 330;McNeil v. Kendall, 128 Mass. 245, 251,35 Am. Rep. 373;Dunlap v. Bullard, 131 Mass. 161, 163;Essex Lunch, Inc., v. Boston Lunch Co., 229 Mass. 557, 559, 118 N. E. 899.It is not necessary to consider whether a covenant against assignment without consent of the lessor in the ordinary lease permits a sublease in its strict sense. If that be assumed to be the law, we are of opinion that that principle is not applicable to the case at bar. The agreement and the lease are incorporated in the writing. The lease was for a specific purpose, the fulfillment of which was inextricably bound together with the assurances secured by the contract touching general and particular aspects of the retail trading adventure. It would be inconsistent with several clauses of the instrument to permit the plaintiff to sublet the portion of the defendant's store described in the lease. Such a sublease would be equivalent to a refusal by the plaintiff to go on with several essential features of the contract. R. H. White Co. v. Remick & Co., 198 Mass. 41, 84 N. E. 113. The agreement and lease signed by the parties manifestly is much more than a lease in the ordinary significance of that word. It is an instrument designed to regulate, so far as reasonably might be foreseen, the manifold relations and points of possible friction arising out of the inevitably close physical situation between the business of the plaintiff and the business of the defendant. The intent of the parties, as gathered from the document as a whole forbids the idea that anybody could be permitted to take the place of the plaintiff in whole or in part in its relations to the defendant without the consent of the latter. The first provision on this general subject is that the agreement cannot be assigned without the consent of the defendant. That clause plainly includes all the business matters of every nature covered by the written instrument. It is not restricted to that part touching the occupation of real estate. In this connection it is not employed to express obligations confined to the law of landlord and tenant, but embraces all the duties, obligations, privileges and relations within the scope of the agreement and lease. The subsequent use of the word ‘assignment’ in the agreement and lease, read in the light of the circumstances of the parties and the main purpose to be accomplished, requires that it be given a meaning sufficiently comprehensive to include both assignment and sublease in their technical signification as applied to the part of the agreement and lease relating to real estate. In no other way can the manifest intent of the parties as disclosed by the writing in its entirety be given effect. To ascertain and effectuate the intent of the parties as manifested by the words used and the object to be accomplished is the goal of all interpretations of written agreements. Eustace v. Dickey, 240 Mass. 55, 72132 N. E. 852;Erickson v. Ames, 264 Mass. 436, 444,162 N. E. 70;Brown v. Little, Brown & Co., 269 Mass. 102, 112, 168 N. E. 521, 66 A. L. R. 1284;Lovell v. Commonwealth Thread Co. Inc. (Mass.) 172 N. E. 77.

The conclusion on this branch of the case is that the plaintiff cannot sublet to another the premises in question without the written consent of the defendant.

One paragraph of the agreement and lease is in these words: ‘The lessor shall grant the lessee display in the show windows of the lessor for the purpose of displaying the merchandise of the...