Blake v. Sanderson

Thomas, J. This action of contract is brought to recover of the defendant, as assignee of a lease, the rent of a shop on Cambridge Street from December 1st 1850 to March 1st 1851. The defendant says that there was no valid assignment of the lease, because by the terms of the lease no valid assignment could be made without the assent in writing of the lessors; and that assent was given only by Edward Blake, one of the lessors. The defendant entered under the assignment, and occupied the premises, and is clearly estopped to deny its validity. It was a condition for the benefit of the lessors, which they might waive, and did waive by recognizing the assignee as their tenant and receiving rent of him as such. By such assignment and acceptance of the lease, the defendant is bound to the performance of its conditions; and his liability for rent is to be governed by the terms of the lease, and not restricted to actual occupation. The defendant further objects to the ruling of the presiding judge, that if the jury found a contract of the parties to apportion the rent, they might apportion it accordingly, on the ground [336] that there was no issue as to apportionment made. The plaintiffs sue for a quarter’s rent, and recover rent for a less. time. Omne majus continet in se minus. Beyond this, the point is not open; for it appears by the bill of exceptions, that the objection was not taken at the trial, though the question of apportionment was raised by the plaintiff’s counsel, and argued to the jury and this upon evidence tending to show a license from the defendant to the plaintiffs to enter upon the premises before the expiration of the quarter, and fit them for a new tenant. It is clear, that if the point had been taken, it would have been of no avail to the defendant. Exceptions overruled.