Bonetti v. Treat

Fitzgerald C. Action for rent alleged to be due and unpaid on certain demised premises described in the complaint.

The answer specifically denies the material allegations of the complaint, and avers the neglect and refusal of plaintiff to obtain his lessor’s consent to the assignment, after having expressly agreed to do so, rescission of the lease and surrender of the premises by the defendant Treat, and the acceptance of and entry thereon by plaintiff.

The facts disclosed by the testimony of the witnesses for the plaintiff are as follows: On the ninth day of January, 1889, the plaintiff executed to the defendant Treat, in conjunction with one Pierce, a written lease of the premises therein described, for the term of five years from the first day of August, 1888, at the annual rent of eighteen hundred dollars for the first year, and two thousand dollars for each and every year thereafter, payable in two equal installments, semi-annually, in [227]advance, on the first days of February and August of each year, during the term of the lease.

Subsequent to the execution of the lease, but on the same day, Pierce executed, with the consent of the plaintiff, a written assignment of all his right, title, and interest in the demised premises to the defendant Porter, who, as part of the consideration “ of such sale or transfer, agreed to pay all rent that may fall due, from time to time, by virtue of the provisions of said lease.” Porter immediately entered into possession of the premises as assignee under the assignment of the lease, and paid by his individual check a part, if not .all, of the first installment of rent.

Treat and Porter continued their joint occupancy of the premises until the latter part of July of that year, when they, without the knowledge or consent of the plaintiff, wholly abandoned the possession of the same; and afterwards, upon demand being made for the rent due and payable on the first day of August, 1889, they refused to pay the same. The reason given by the defendant Treat to plaintiff for the abandonment of the possession of the premises and the refusal to pay the rent when it became due was to the effect that Porter declined to pay any further rent until plaintiff obtained the consent of his lessor to the assignment, and that he, Treat, could not do anything alone. The evidence shows that plaintiff never promised or agreed to furnish such consent to Porter, or to any one for him.