Brewer v. Dyer , 61 Mass. 337 ( 1851 )

The opinion was delivered at March term, 1852.

Bigelow, J.

The plaintiff seeks to maintain his action on various grounds. The first is, that there was a valid assignment of the original lease by Parmelee, the lessee, to the defendant. But we think it very clear that the writing, given by the defendant to Parmelee, does not amount to a legal assignment of the lease, so as to constitute, between the plaintiff and defendant, the relation of lessor and lessee. The original lease was under seal, and could, therefore, be assigned only by deed, it being a well settled rule of law, that the instrument of transfer must be of as high a nature as the instrument transferred: Wood v. Partridge, 11 Mass. 488; Dennis v. Twitchell, 10 Met. 180.

In this case the agreement between the lessee and the defendant was a simple contract, not under seal, and does not contain any apt and proper words of assignment. Nor is there any evidence to show that the lease was ever delivered to or in possession of the defendant. For aught that appears, it was retained by and continued in the hands of Par-melee. But even if there were a doubt on this point, and if the facts did disclose an assignment of the lease, there is a decisive objection to the plaintiff’s recovery in this form of action. The proper and only remedy of a lessor against the assignee of a lease for rent, is by an action of covenant or debt upon the deed; that being a remedy of a higher nature, and one applicable to the contract -subsisting between the parties. So strictly is this rule held, that an action of assumpsit cannot be maintained upon an express promise by a tenant to the landlord, when the original lease is by deed, unless some new consideration forms the basis -of the promise. Fostev. Allanson, 2 T. R. 479; Reade v. Johnson, Cro. Eliz. 242; Codman v. Jenkins, 14 Mass. 93; Archb. Land. & Ten. 148. If, therefore, the plaintiff could establish an assignment of the lease, it would not enable him to maintain his present action for use and occupation.

Another ground taken by the plaintiff is, that by the acts and agreements of the parties a surrender of the original lease is shown to have been made; and that the defendant can therefore be charged as a tenant at will, for use and occupation, upon proof of his beneficial enjoyment of the premises. But the facts in this case fall very far short of proving a surrender, to constitute which, it must be made clearly to appear, in the absence of any deed or written instrument, that it was the intention of the parties to create a new lease of the premises, and substitute a new and different estate for that granted by the original lease. See 2 Stark. Ev. (5th Amer. ed.) 342; Archb. Land. & Ten. 82. But, in the present case, nothing is shown which indicates any such intention ; while there are several facts which tend very clearly to negative it. The original lease was not cancelled nor given up; the lessor, after the defendant went into occupation of the premises, continued to treat the original lessee, Parmelee, as liable, by making out the bills for rent, as they became due, in the name of Parmelee, although they were presented to and paid by Dyer, the defendant. And in the written contract between Parmelee and the defendant, the lease is treated as in full force and effect, and not as cancelled and surrendered, by the very terms of the agreement by which the defendant agrees “ to take the lease.” Upon these facts, it cannot be inferred that there was any intention between the parties to surrender the lease. The defendant therefore cannot be held liable as a tenant at will.

But there is a ground taken by the plaintiff, upon which the court are of opinion that he is entitled to recover in this form of action; and that is, upon the principle of law, long recognized and clearly established in this commonwealth, that when one person, for a valuable consideration, engages with another, by simple contract, to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement. Felton v. Dickinson, 10 Mass. 287; Hall v. Marston, 17 Mass. 575; Arnold v. Lyman, 17 Mass. 400; Carnegie v. Morrison, 2 Met. 381. In the latter case, all the authorities are fully reviewed in the opinion of the court, and the rule of law clearly vindicated and established. It does not rest upon the ground of any actual or supposed relationship between the parties, as some of the earlier cases would seem to indicate ; Dutton v. Pool, 1 Vent. 318; 2 Walford on Parties, 1144; nor upon the reason that the defendant, by entering into such an agreement, has impliedly made himself the agent of the plaintiff; by Coleridge, J., in Lilly v. Hays, 5 Ad. & El. 551; but upon the broader and more satisfactory basis, that the law, operating on the act of the parties, creates the duty, establishes the privity, and implies the promise and obligation, on which the action is founded. In the case at bar, the agreement, although made between Parmelee and Dyer, is in express terms to pay the rent to Brewer, the plaintiff, and he is the party to be benefited thereby. It is made upon a valid consideration, as between Parmelee and the defendant; being the surrender of the shop by the former, and its occupation by the latter. To make the defendant liable, no consideration need move as between him and the present plaintiff. Nor is it any objection to the plaintiff’s right to recover, that Parmelee might also have a remedy on the con - tract, in case the plaintiff should not elect to adopt it. It does not operate to extinguish Parmelee’s liability. The plaintiff, if he so elects, can seek his remedy on the agreement, or may rely on the original undertaking of his lessee; in which latter case, Parmelee could enforce the contract against the defendant. These principles are all well settled in the adjudged cases, and it is unnecessary to enlarge upon them. It seems to us that the case at bar falls clearly within them, and that the agreement in question, having been made for the benefit of Brewer on a sufficient consideration, and having been accepted and adopted by him, he- can well maintain his action of assumpsit against the defendant.

We have not considered the question, whether the proper form of declaring would be by a count on the special agreement, instead of the common count for use and occupation, as that point was not raised in argument; and being a matter of form, if the declaration is bad, in this respect, it can readily be remedied by an amendment. Judgment for the plaintiff.