Damren v. American Light & Power Co.

Haskell, J. Assumpsit for rent. The first count declares for rent from November 20, 1894, to August 8,1895. The case is on report, to be decided upon so much of the evidence “as competent and legally admissible.” One Charles Gay, being the owner of a building and water power connected therewith, leased the same to defendant. Gay became an insolvent debtor and on the 8th of August, 1895, his assignees conveyed all the right, title and interest which Gay had in the premises when he became insolvent to the plaintiff, including the lease, rent being in arrear from that day to the day of the conveyance. Thereafterwards, on the 17th of January, 1896, the assignees assigned such rent to the plaintiff. Rent in arrear is a chose in action and does not pass by a conveyance of the reversion. Winslow v. Rand, 29 Maine, 362; Burden v. Thayer, 3 Met. 76; Massachusetts Hospital Life Ins. Co. v. Wilson, 10 Met. 126. An assignment of rent reserved under a lease gives the assignee an action in his own name for rent subsequently accruing. Kendall v. Carland, 5 Cush. 75; Hunt v. Thompson, 2 Allen, 341; Harmon v. Flanagan, 123 Mass. 288; Beal v. Boston Car Spring Co., 125 Mass. 157. No case can be found where an assignee of a lease or of rent reserved has been permitted, at common law, to sue in his own name for rent in arrear at the time of the assignment. The conveyance of the reversion and of the lease was August 8, 1895. It passed the title that day of estate held by their insolvent on the 20th of November, 1894. It cannot be construed as a grant or assignment, taking effect. the previous November, when the debtor was adjudged insolvent. The part of the grant referring to that date was mere description of the estate conveyed. The rent meantime had accrued to the assignees,' and payment to them would have discharged the rent. It had become separated from the land, and was a chose in action recoverable only at common law in the name of the assignees. Whether that rent be held as assigned [338] to the plaintiff under the conveyance of August 8th, or the subsequent assignment of it in the following January, makes no difference as it was a chose in action to be sued for in the names of the assignees in insolvency only. Under R. S., c. 82, § 130, an assignee of choses in action, not negotiable, may sue in his own name to recover the same, but “shall file with his writ the assignment or a copy thereof.” No assignment was so filed in this case, but both the conveyance of August 8th and the assignment of the following January, when offered in evidence, were objected to, and under the stipulations cannot be considered if not legally admissible. This question has been decided in Bank v. Gooding, 87 Maine, 338, where it is squarely held that such assignments not filed with the writ are not admissible in evidence against objection. The claim sued in the first count cannot, therefore, be recovered in this action. The second count declares for rent from August 8th to November 20, 1895. On the former date the lease had been assigned to plaintiff, so that rent accruing afterwards may be recovered by plaintiff in his own name. The lease was terminated on the 20th of November, 1895, by plaintiff taking possession for non-payment of rent. The rent was payable monthly on the first day of each month, so that all plaintiff can recover in any event is rent for August, September and October. The November rent had not accrued, and therefore cannot be recovered. Nicholson v. Munigle, 6 Allen, 215. The rent reserved in the lease was $200 per annum for a building used as an electric light station, and $500 for each 50 light dynamo. The latter was really a rent for power, to be determined by the amount used. It is contended by defendant that during .this time the premises were suffered to be out of repair by reason of damage from a freshet, whereby the rent should abate. During the preceding winter and spring, defendant removed its plant for electric lighting elsewhere, keeping these premises as a reserve in case of trouble with its principal plant. The equipment was also diminished, as it could be readily reinforced in emergency. [339] The lessor had been adjudged insolvent the December previous. In April a freshet is said to have injured the racks and penstock, so that the power could not be used, and each party claims that the same were suffered to remain out of repair by the fault of the other. The testimony is meagre and conflicting and somewhat confused. The defendant did not very much need the active use of the station, and the assignees do not seem to have cared to incur the expense of repair. We cannot say that the premises were injured or suffered to remain out of repair by the fault of defendant. It seems as if the injury was occasioned by a freshet over which defendant had no control, and the non-repair was suffered to continue by common consent, and that, meantime, under the terms of the lease, rent for power should abate. The rent for the building, however, is made a separate item in the lease, and special provisions are inserted concerning its injury and, meantime, for the abatement of rent. During these three months defendants occupied the building and under the terms of the lease become liable for rent therefor. If there had been a division of the reversion of the premises by the lessor before his insolvency, the building was excepted and therefore is not subject to an apportionment of rent. Defendant defaulted for §49-98 and interest from date of writ. From the above discussion of the rights of the parties, it will be seen that no breach of covenant, if available to the plaintiff, has been shown, and therefore in his action for covenant broken the entry must be Judgment for defendant.