Davis v. Hartel

Opinion by Rice, P. J., The material parts of the lease involved in this litigation and the nature and facts of the case are [564] clearly set forth in the opinion of the learned trial judge and need not be restated. The appellant’s contention is that the principle of law which rules the case is that where a person occupies a dwelling house and rents rooms to another, the latter is a lodger, and as the former has a right to select the lodgers in his dwelling house, an assignment by the lodger is not valid without the consent of the landlord. It is true as a general proposition that when one contracts with a keeper of a hotel or boarding house for a room and board, whether for a week or year, the technical relation of landlord and tenant is not, without more, created between the parties: Wilson v. Martin, 1 Den. (N. Y.), 602. So in White v. Maynard, 111 Mass. 250, it was held that an oral contract by the keeper of a boarding house to provide a man and his family for six months with board and with three specified rooms as lodgings, and to light and heat the rooms, was not within the statute of frauds. These two cases are particularly relied on by appellant’s counsel but they are plainly distinguishable from the present in their facts and do not sustain the proposition that the grantee in the instrument in question acquired the mere personal rights of a lodger. The distinction was pointed out by Justice Grey in the latter case. After reviewing many of the English and American decisions relative to the rights of a mere lodger he cited cases to the effect that an entire floor, or a series of rooms, or even a single room, may doubtless be let for lodgings, so separated from the rest of the house as to become in fact and in law “the separate tenement of the lessee.” And this is the generally recognized doctrine. Thus in Taylor on Landlord and Tenant (9th ed.), sec. 66, it is said: “The growing frequency of the occupation of ‘flats’ or ‘suites’ — subdivisions of a house or other entire structure — has given rise to many questions in determining whether the occupant is a tenant or not; that is, whether he has an interest in the realty, or only a personal contract. [565] While there can be a tenancy of real estate, though in a single room, or in furnished rooms; yet this can only be created by clear terms of demise.” In the same connection the learned author cites the decision in Stamper v. Sunderland, L. R. 3 C. P. 388, which has been followed by other courts, that ordinary flats are as much separate dwellings as adjoining houses, and it makes no difference whether the structure is divided vertically or horizontally. The principle is applicable here. The instrument in question contained clear words of demise; it was designated by the parties as a lease of the premises; it reserved a certain rent; it specified a term with a certain beginning and ending; and provided for a renewal. The subject-matter is described in the instrument as a “housekeeping flat” consisting of dining room, kitchen, bed room and sitting room. There is no ground for inferring that in so describing the premises the defendant made a mistake in the use of terms; on the contrary, there is evidence that she declared that when she built the building “it was arranged for an apartment house to rent if she needed money.” Moreover, this housekeeping flat was not in a mere private dwelling house. It was on the second floor of a large building at the corner of two streets, used in part for business purposes. On the first floor was a grocery store with a large parlor in the rear. True, this parlor with part of the second story was occupied by the defendant as her residence. But this latter fact, when considered in connection with the other facts and the terms of the lease, does not militate against the conclusion that the housekeeping flat was intended to be leased as a distinct tenement as fully and completely as if the other parts of the second floor had been leased to another tenant. Nor is this conclusion prevented by the fact that the defendant’s rooms on the second floor and the apartment leased were reached by a common doorway and hall. See Swain v. Mizner, 74 Mass. 182, in which it was held that where a building is leased in [566] distinct portions to several tenants who have exclusive occupation and control of their respective tenements, and use in common the entry and stairway, an officer who has entered through the outer door of the house into the entry has no right to break open the door of one of the tenants. This was put upon the ground that each separate tenement was a dwelling-house. The evident intention of the parties to the instrument in question here was that the lessee should have the exclusive possession and control of the premises leased, and there is nothing in the evidence to warrant the inference, contrary to the form and terms of the written instrument, that he should have only the rights of an ordinary boarder or lodger. The defendant had a right to set apart a portion of her building as a housekeeping flat and to lease it as such. This is what the instrument shows she intended to do and no good reason can be assigned for not giving effect to her intention. We concur with the learned trial judge in the conclusion, which is well supported by the reasoning of his opinion, that the instrument, if perfected by entry, would have amounted to an actual demise and would have given the occupant all the possessory rights of a tenant. This being so, and there being nothing in the lease restrictive of the rights of the lessee in this particular, the assignability of the term after entry and of the interest of the lessee before entry logically follows. The power of assignment is incident to the estate of every lessee unless it is restricted by the terms of the lease: Greenaway v. Adams, 12 Ves. 395. It exists without the use of the word “assigns:” 24 Cyc. L. & P. 962; 13 Am. and Eng. Ency. of Law (2d ed.) 659; Williams v. Downing 18 Pa. 60. Whether the term is to commence immediately or at a future date the interesse termini at once vests in the lessee upon the execution of the lease. And an interesse termini is a marketable interest assignable at law: Lock v. Furze, 19 C. B. (N. S.) 96, 120; Taylor on L. & T. (9th ed.) sec. 15. Applying these [567] general principles to the facts of the case, the conclusion follows that the plaintiff (Davis) acquired by the assignment the interest that had been granted to the lessee (Slaughter) in the premises, and this right or interest, thus vested in him, entitled him to maintain an action in his own name to recover damages from the defendant, the lessor, for refusing to admit him to the possession. The amendment substituting him as legal plaintiff, instead of use plaintiff, does not materially change the cause of action as set forth in the statement of claim, and was properly allowed. Inasmuch as the rent for the entire term was paid at the execution of the lease, the court committed no error in admitting evidence of the rental value of the leased premises and allowing recovery in that amount, it being less than the sum stipulated in the lease. Indeed, we know of no other measure of damages that would have compensated the plaintiff for the loss he sustained by the defendant’s refusal to admit him into possession. See Riley v. Hale, 158 Mass. 240. We have carefully examined all of the authorities cited in the brief of the learned counsel for the appellant and do not find that the foregoing conclusions are in conflict with any of them. All of the questions raised on this appeal, as well as other subsidiary ones which arose on the trial, were correctly decided by the learned trial judge and the decision of the case might well be rested on his opinion. The assignments of error are overruled and the judgment is affirmed.