Shattuck v. Lovejoy

The assignment, without the approbation of the lessor, of a lease which contains a covenant that the lessee will not lease, underlet nor permit any other person to occupy without such approbation, does not determine the lease, without reentry by the lessor; nor enable the lessor to maintain an action for use and occupation against one occupying part of the premises under the assignee before such reentry.

Action of contract for the use and occupation of the second story of a building in Hanover Street in Boston, for the quarter ending January 1st 1855. At the trial in the court of common pleas, at October term 1855, before Mellen, C. J., the plaintiff’s title as devisee of his father was admitted, and the plaintiff introduced evidence that the defendant occupied the rooms in question and paid the rent for the quarter ending October 1st 1854, and continued to occupy the rooms during the next quarter. The defendant offered evidence that the plaintiff’s father, on the 1st of January 1850 made a lease of the building to Nichols, Irish & Church for five years, which, through sundry mesne assignments, came to Shumway & Campbell; and that the defendant entered into possession of the second story in September 1854, and paid the rent of the whole premises on the 1st of October as Shumway’s agent, and occupied as tenant at will of Shumway. The lease contained a covenant that “ the lessees will not lease, underlet nor permit any other person or persons to occupy or improve the same, but with the approbation of the lessor, or those having his estate in the'premises, thereto in writing having been first obtained; ” and also the usual provision for a reentry in case of a breach of covenant. There was no evidence that the plaintiff or his father had ever had any knowledge of the assignments, or consented thereto; or had ever entered upon the premises or taken any steps to' determine the lease. The plaintiff objected to the admission in evidence of any of the assignments. But the court admitted them, and instructed the jury “ that if the lease was in force during the quarter in question, and the plaintiff or his ancestor had not assented to the assignments, he would have a claim on the original lessees for rent; if said assignments had been assented to, his remedy was against Shumway & Campbell; and that if they were satisfied that during the quarter in question the relation of landlord and tenant did not exist between the plaintiff and the defendant, but the defendant was tenant at will to Shumway, the plaintiff could not recover.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.