O'Keefe v. Kennedy

Shaw, C. J. A lease creating a term for years is m its own nature assignable, and may therefore be transferred by the lessee to another, unless the lessee is restrained by covenant ; but such a covenant, being in restraint of the legal operation of the instrument, is to be construed strictly. The lease in question did contain such a restriction. There was a covenant on the part of the lessee not to assign, nor to underlet the whole or any part of the demanded premises, without the consent of the lessor first had and obtained in writing. The lessor did express his consent in writing that the lessee might underlet; but he now insists that this did not extend to assigning. The distinction is a narrow one, but we have not thought it necessary to consider it. The plaintiff relies on the ground of a waiver; and the question is, whether the defendant, by receiving rent from the plaintiff, with knowledge that he had become possessed of the lease and premises by assignment, had not" thereby waived the restriction. The receipt for rent, given by the defendant to the plaintiff, referring to the lease so as to identify it, was evidence to show that the defendant had knowledge of the assignment, and received the defendant as his tenant; and the fact was so found by the jury. The court are of opinion, that the direction was right, and that the defendant had waived his exception to the lessee’s power to assign. Supposing that the breach of such covenant would be a breach of condition, and would give the lessee a right to reenter, it was a covenant made for his benefit, and gave him a right which he might waive. [328] By receiving rent of the assignee, with a knowledge oí the assignment, it seems to us very clear, that the lessor could not afterwards, consistently with good faith, assert his right to enforce the forfeiture for that cause. Goodright v. Davids, Cowp. 803; Roe v. Harrison, 2 T. R. 425. The first of these cases is directly in point; in the other, the judgment was in favor of the lessor, on the ground, that at the time of the acceptance of rent, he had no knowledge of the under-letting ; thereby affirming the same principle by implication. Exceptions overruled.