Saxeney v. Panis
| Decision Date | 03 June 1921 |
| Citation | 239 Mass. 207,131 N.E. 331 |
| Parties | SAXENEY v. PANIS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Middlesex County; Franklin T. Hammond, Judge.
Suit by Leo Saxeney against Andrew G. Panis and others. From a decree dismissing the bill, plaintiff appeals. Reversed.
The suit was for specific performance of a provision for renewal in a lease. Plaintiff and the defendant Panis were the original lessees and partners in the business conducted on the leased premises. Panis sold his interest to plaintiff, who formed a partnership with others. The defendants, including Panis, purchased the premises and refused to renew on the ground that there had been no consent to the assignment of the lease to the new partnership.Philip J. Sondheim, of Boston, for appellant.
Joseph A. Dennison and Robert Gallagher, both of Boston, for appellees.
On June 1, 1914, the Twenty-Five Associates of Roxbury, Inc., leased premises in Arlington, Massachusetts, for a term of five years from May 31, 1914 to Andrew Panis and Leon Saxeney who were partners. The lease contained a covenant on the part of the lessees against assignment or underletting in whole or in part ‘without first obtaining on each occasion the consent in writing of the lessor.’ The lease provided that the lessees should have at its expiration a right of renewal for the term of five years. This suit was brought by Saxeney alone to enforce the renewal of the lease.
On January 31, 1919, Panis, James N. Skends and George V. Conda became the owners of the land and building of which the leasehold was a part. The plaintiff knew that this purchase was contemplated and declined to join therein. The partnership between Panis and Saxeney was dissolved on March 7, 1919, and Panis sold to Saxeney his interest in its assets including his interest in the lease. From March 7, 1919 to the time when the suit was heard, the business formerly conducted in the premises described in the lease has been carried on therein by a partnership composed of the plaintiff and four others. The defendants knew of the existence of, and occupation by, this partnership from on or about the time it was formed. The rent was payable monthly in advance. The plaintiff paid the amount fixed in the lease on or about April 1, 1919 and on May 1, 1919, as rent for the months of April and May respectively. The last payment was made by check of the new partnership payable to Panis, who gave a receipt therefor running to Saxeney. The rent thereby was paid for the remainder of the term of the lease. See Davenport v. Queen, 3 App. Cas. 115.
On May 23, 1919 the partners as such duly notified the defendants that they elected to renew the lease under the provisions thereof. The master's report contains no finding that Saxeney had made an assignment to his partners of any interest in the lease, and it does not purport to state all the evidence on that subject. Hence it cannot be assumed that an assignment existed. The defendants on May 27, 1919 declined to give a renewal because they had not consented to an assignment of the lease to said partners, and also because of other unstated reasons. On the day following, the plaintiff notified the defendants that he elected to renew the lease in accordance with the provisions relating to renewal. The defendants on June 3, 1919 refused this application, stating as a reason therefor that they never had consented to the assignment of the lease to the plaintiff, and further that there were other reasons for their declination which, however, they did not give; and the original lease having been expired, they notified the plaintiff to vacate the premises. No entry to terminate the lease had been made. The defendants did not decide to refuse a renewal of the lease until May 27, 1919.
At the hearing it was agreed, and the master finds, that ‘the taking in of partners without the consent of the defendants as successors in title to the original lessee is the breach claimed and relied upon’ by the defendants. The same kind of business was carried on by the new partnership as had been by the original lessees.
The lease provided that the word ‘lessee’ should include executors, administrators and assigns of the lessee when the context so admits. The right of renewal by this express provision ran with the land and would vest in an assignee of the lease where the assignment had been made with the lessor's written consent, or with the consent of those standing in its position. Hollywood v. First Parish in Brockton, 192 Mass. 269, 78 N. E. 124;Peters v. Stone, 193 Mass. 179, 186, 79 N. E. 336;Lamson v. Coulson, 234 Mass. 288, 125 N. E. 551; Robinson v. Perry & Martin, 21 Ga. 183, 68 Am. Dec. 455; Barbee v. Greenberg, 144 N. C. 430, 57 S. E. 125,12 Ann. Cas. 967.
An assignment of interest in a lease by one of two lessees to the other is a breach of a covenant against assignment, although the lessees were partners; and if not waived is a...
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