Porter v. Merrill

• Decision Date: 29 June 1878
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: J. K. Porter & wife v. Moody Merrill

124 Mass. 534

J. K. Porter & wife v. Moody Merrill

Supreme Court of Massachusetts

June 29, 1878

Argued November 15, 1877 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Writ of Review of a judgment recovered by the defendant in review against the plaintiffs in review, for rent for August and September, 1875, on the following instrument in writing, signed by the plaintiffs in review and Dio Lewis: "Lease of Apartments in the Bellevue. Dio Lewis leases to Mr. and Mrs. J. K. Porter Rooms No. 1 and 2, in the Bellevue, Nos. 17 and 19 Beacon Street, Boston, for the term of twelve months, for forty-four dollars per week, to be paid on the first day of each month. It is agreed that there shall be no cooking in said rooms. It is agreed that if, at any time during the occupancy of said rooms by said lessees, any piece of furniture or carpet, furnished by Dio Lewis or his representative, is soiled or injured beyond ordinary wear, or should a window be left open, and the furniture or building suffer in consequence, said lessees agree to pay the damages. It is agreed that the lessees shall not keep a dog or cat. It is agreed that the lessees shall pay for washing windows, twenty-five cents each. It is agreed that the lessees shall give one full month's notice of their intention to renew this lease, and that, in case they do not give such notice, the lessor or his agent may show said rooms to other applicants during the last month of this lease. It is agreed that the lessees shall pay for gas according to the meter attached to the room. The lessees agree to furnish linen and blankets for the beds, and linen for the table, and silver for the table, and to take care of the silver. The lessor agrees to do the chamber and parlor work, to heat the rooms and serve a private table; and he agrees likewise to keep the linen in condition, all without extra charge. The rent of the above-named premises to commence and possession to be had by the lessees on the first day of October, 1874."

Upon the above instrument was the following indorsement, dated February 9, 1875, and also signed by the plaintiffs in review and Dio Lewis: "It is agreed that the lessees shall remove to the rooms occupied recently by Mrs. S. Willard, in No. 19 Beacon Street, for the residue of the term named in this lease. Lessor agrees to furnish the rooms in No. 19 with the furniture now in No. 17, adding, if required by lessee, an entire new parlor suite, and a centre table for back room, and lace curtains for front parlor with lambrequins for same. It is agreed, that if at any time the lessor shall have a genuine applicant for the future rental of the rooms in No. 19, to which the Porters remove, he may show them, unless the Porters shall decide to remain for another year. But this right shall not begin till the first of June."

Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions in substance as follows:

The suite of rooms which the plaintiffs in review occupied were in the building numbered 19 on Beacon Street, in Boston, to which the defendant in review claimed title by virtue of an assignment of a lease in writing and under seal, which had been executed by William W. Warren and Leonard M. Fitch, trustees, to Ruth A. Leonard, dated May 29, 1872, for a term of five years from June 5, 1872, the execution of which was admitted, and by an assignment under seal from Leonard to Dio Lewis, indorsed thereon. The original lease contained a covenant by the lessee to and with the lessors "that she or others having their estate in the premises will not assign this lease, without the consent of said lessors or those having their estate in the premises first being obtained in writing allowing thereof," and also a condition that "if said lessee or his representatives or assigns do or shall neglect or fail to perform and observe any or either of the covenants contained in this instrument," then the lessors might enter and determine the lease. The assignment to Lewis was assented to by the lessors in writing under seal, and signed by them, as follows:

"The foregoing assignment is assented to on the condition that no further alterations on the within-described leased premises shall be made by said Lewis, the assignee of this lease, without our written consent, and that the difference on the cost of insurance of $ 10,000, in consequence of the opening in the division walls between Nos. 17 and 19, and the requirements of the city of Boston as to proper doors in said openings, shall be borne and fulfilled by Dio Lewis, the said assignee."

Upon the lease was the following indorsement, dated October 26, 1872, and signed and sealed by Lewis:

"The within lease having been assigned to me with consent of the trustees and lessors of said lease under certain conditions, I agree to those conditions and do assume and agree to fulfil all the covenants and stipulations thereof by said within lessee to be performed."

Lewis held the premises under the assignment to him until, by an indenture between Lewis and the defendant in review, dated and executed July 6, 1875, the lease was assigned by Lewis to Merrill; and, within a week thereafter, J. K. Porter, the first named plaintiff in review, had such notice of the assignment, as would be inferred from his warning from the servants that Merrill had bought the interest of Lewis in the premises.

No assent in writing was made to this assignment to the defendant in review, but on August 5, 1875, Merrill paid one month's rent then due according to the terms of the original lease, which was accepted by the lessors, and the rent for subsequent months, which was accepted in like manner. Porter, early in August, 1875, paid to the agent of Merrill his rent for the month of July.

The plaintiffs in review requested the judge to instruct the jury that the original action could not be maintained, because no valid assignment of the leasehold estate, to which the defendant in review claimed title, had ever been made to him by reason of the absence of an assent in writing by the original lessors; because the instrument declared upon had never been assigned by Lewis to Merrill otherwise than by operation of law by the assignment of the reversion; and because the...