Segre v. Ring

• Decision Date: 23 May 1961
• Citation: Segre v. Ring, 103 N.H. 278, 170 A.2d 265 (N.H. 1961)
• Parties: Carmen SEGRE and Andromache Segre v. Donald A. RING et al., Selectmen of the Town of Hampton.
• Court: New Hampshire Supreme Court

Page 265

170 A.2d 265

103 N.H. 278

Carmen SEGRE and Andromache Segre v. Donald A. RING et al., Selectmen of the Town of Hampton.

Supreme Court of New Hampshire.

Argued April 5, 1961.

Decided April 28, 1961.

Rehearing Denied May 23, 1961.

Shaines & Brown, Portsmouth (Robert A. Shaines, Portsmouth, orally), for plaintiffs.

Perkins, Holland & Donovan, Exeter (Robert B. Donovan, Exeter, orally), for defendants.

BLANDIN, Justice.

The instrument in question contains an unqualified provision 'that the lessee will not assign this lease without the written consent of the lessor.' It is undisputed that, were the transaction between private parties, the defendants would have the right to refuse assent to the assignment requested by the plaintiffs. 68 Beacon Street, Inc. v. Sohier, 289 Mass. 354, 360-361, 194 N.E. 303; 51 C.J.S. Landlord and Tenant § 33(a); anno. 31 A.L.R.2d 8, p. 831. Their reasons for so doing would be immaterial and they would not have to disclose them. 32 Am.Jur., Landlord and Tenant, § 343.

However, the plaintiffs claim that since the defendants are selectmen and the contract is with the town, of which the selectmen are the agents, the lease should be construed in a different manner than if it were between private parties, and so as to compel consent to the assignment, or to force the selectmen to give reasonable excuse for not doing so, even though this be contrary to the clear intent of the parties to the lease. They base this argument upon the allegation that the action of the selectmen is taken because the plaintiffs are American citizens of Italian descent and assert that this is discrimination contrary to the Fourteenth Amendment of the Federal Constitution. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149. The difficulty with this position is that according to the uncontested facts the land involved here is in the nature of private property not now used or useful for governmental purposes, and the town is dealing with it in a quasi private or proprietary capacity. Town of Meredith v. Fullerton, 83 N.H. 124, 139 A. 359; McQuillin, Municipal Corporations, (3d ed. vol. 2) § 4:132, p. 191. In such a situation a private party would not be required to give any reason for refusing assent to an assignment in a lease such as this one. Town of Meredith v. Fullerton, supra, 128, 129, 133, 139 A. 359; Davis v. Inhabitants of Rockport, 213 Mass. 279, 283, 100 N.E. 612, 43 L.R.A.,N.S., 1139.

We have then a case where parties freely entered into a lease containing a plan and unqualified restriction against assignment without the consent of the lessor. They could easily have omitted this clause (Machinist v. Koorkanian, 82 N.H. 249, 132 A. 256) or qualified it in any number of ways. See anno. 31 A.L.R.2d 831, 833-838. They did not choose to do so.

Resort towns such as Hampton are faced with...