Lewine v. Baltar , 12 Gummere 231 ( 1922 )

The opinion of the court was delivered by

Bergen, J.

The plaintiff recovered a judgment in ejectment against the defendant, who appeals. The plaintiff was the owner of the land in controversy as appears by the deed to her from her vendor in possession, and if no other matter intervened, plaintiff would have been entitled to a directed verdict. But the plaintiff offered in evidence a written lease for the premises made by her husband to the defendant, containing covenants which if broken entitled the lessor to re-enter. There was evidence of covenants broken, and that question was submitted to the jury and found for the plaintiff.

The trial errors argued by the defendant can all he disposed of in dealing with his objection to the admission in evidence of Hie lease. Tt was proven that in making the lease, although, the lessor named was the husband of the plaintiff, he was acting for her, and the contract was made for her benefit. The defendant cites a number of cases, to the effect that where an agent makes a lease in his own name, his principal cannot sue to enforce it, but all were decided before the statute 1903 (Comp. Stat., p. 4059, § 28), and the rule is otherwise in this state. Holt v. United Security Life Insurance Co., 76 N. J. L. 585. The defendant was not injured by the admission in evidence of the lease as a contract made for the benefit of the plaintiff, for it conferred on defendant a right'to possession unless he should forfeit it by violating its covenants on which his right to possession rested. The only possible defence defendant had was his right to possession under the lease which plaintiff introduced-in evidence, and if it had been rejected by the court, on the motion of the defendant, upon the ground that it was not a lease executed by plaintiff, then defendant had no right to hold possession against plaintiff’s deed. If plaintiff had rested on her deed from one in possession, what could have been defendant’s defence under this record other than his right to possession under the lease he now complains was illegally admitted, and to make it available he would have to prove that it was a contract made for plaintiff’s benefit, otherwise it was not her contract and granted to defendant no right to possession.

No legal error appearing in this record the judgment will be affirmed, with costs.

For affirmance — The Chief Justice, Sivayze, Teen-chard, Parker, Bergen, Minturn, Kalisch, Black, Kat'zenbach, White, Heppenheimer, Gardner, Ackerson, Van Buskirk, JJ. 14.

For reversal — The Chancellor, Williams, J. 2.