GEORGIANNA JOHNSON & another vs. EUGENE W. STONE, administrator.

CONTRACT , against an administrator, for $300 upon a covenant to pay rent contained in a lease from the plaintiffs to the defendant's intestate dated April 15, 1907, for the term of five years from May 15, 1907. Writ in the Police Court of Lynn dated May 1, 1911.

On appeal to the Superior Court the case was tried before Bell, J. It appeared that the lease was in the ordinary form and contained a covenant of the lessee "not to lease, nor underlet . . . but with the approbation of the lessors or Chase and Lunt, agents, thereto, in writing, having been first obtained;" that the defendant's intestate died in September, 1909, and that the defendant was appointed administrator in January, 1910. The defendant relied on a defense, set up in his answer, that the plaintiffs had prevented the defendant from making an assignment of the leased premises. The defendant made an offer of proof as follows:

"The defendant offers to show that the defendant entered into negotiations with a man who was of sufficient financial responsibility to be acceptable as a tenant by a prudent landlord, whereby that man was willing and stood ready to take from the defendant an assignment of the two leases [Note p219-1] in question;

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that, further, the plaintiffs and their agents acting for them stated to that man that they would not recognize the proposed assignment as entitling the man to any rights in the property covered by the leases if that assignment were actually made and that by reason of those statements made by the plaintiffs and their agents the man in question declined and refused to accept the proposed assignments and would have nothing further to do with the matter, and that, further, the defendant thereupon gave to the plaintiffs the keys of the premises and notified them that he considered himself to be discharged from further liability under the leases by reason of the statements made by the plaintiffs whereby the man in question was caused to refuse to take the assignments."

It was agreed that the redelivery of the keys was not an acceptance of a surrender of the lease.

The judge ruled that the facts stated in the offer of proof would not constitute a defense to the action, and, there being no dispute as to the other matters involved in the case, ordered a verdict for the plaintiffs for the amount claimed. The defendant alleged exceptions.

The case was submitted on briefs.

R. E. Burke & E. E. Crawshaw, for the defendant.

W. H. Niles & E. S. Underwood, for the plaintiffs.

BRALEY, J. By the death of the lessee during the term, the leasehold became personal assets of his estate, and the restrictive covenant not to lease, nor underlet, nor permit any other person or persons to occupy or improve the premises but with the approbation of the lessors thereto in writing having been first obtained, while binding the lessee, did not prevent the leasehold interest from passing to the defendant as the administrator of his estate. Smith v. Putnam, 3 Pick. 221, 223. Bemis v. Wilder, 100 Mass. 446. Squire v. Learned, 196 Mass. 134, 136.

But the defendant's offer of proof, that he obtained a purchaser ready to accept an assignment, but who afterwards withdrew because the plaintiffs refused to recognize him as a tenant, affords no defense, and was rightly excluded. If the sale had been perfected by an assignment, the defendant still would have been liable by privity of contract under the intestate's covenant to pay the rent for the amount shown by the stipulations of the parties, although the assignee also might have been bound through

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privity of estate. Way v. Reed, 6 Allen 364, 368, 369. Hovey v. Newton, 11 Pick. 421. Bradford v. Patten, 108 Mass. 153. Greenleaf v. Allen, 127 Mass. 248. Deane v. Caldwell, 127 Mass. 242. Donaldson v. Strong, 195 Mass. 429, 431, and cases cited. Nor would the acceptance of rent from the assignee bar an action against the defendant for rent subsequently accruing and remaining unpaid. Way v. Reed, 6 Allen 364, 368, 369. Greenleaf v. Allen, 127 Mass. 248. The defendant could be relieved only by a surrender of the remainder of the term unconditionally accepted by the lessors, and in the absence of such evidence the judge properly ordered a verdict for the plaintiffs. Deane v. Caldwell, 127 Mass. 242.

Exceptions overruled.