Wall v. Hinds

Bigelow, J. 1. The assignment by the lessee of his entire interest in the estate under the lease, and the acceptance of rent by the plaintiffs from the assignees, do not constitute a valid defence to the present suit. It is the well settled rule of law that in such case the lessor cannot maintain an action of debt for rent against the lessee; but that an action will lie against him on the covenant for the payment of rent. The reason of the rule is, that, although by the assignment the privity of estate between lessor and lessee is terminated, there still remains the privity of contract between them, created by the lease, which is not affected by the assignment. The lessee still continues liable on his covenant, by virtue of the privity of contract Bachelour v. Gage, Cro. Car. 188. Barnard v. Godscall, Cro. — 267 — Jac. 309. Thursby v. Plant, 1 Saund. 240. Auriol v. Mills 4 T. R. 94. 2. The right of the plaintiffs to recover rent at the rate of fifteen hundred dollars a year results necessarily from the express terms of the lease. The power to continue the term at an increased rent, in the contingency contemplated by the original parties to the contract, was given not only to the lessee, but also to “ his legal representatives and assigns.” The defendant, therefore, by assigning the lease, transferred this right to those who were his legal assigns at the time when it was to be exercised. He was therefore, in this particular, bound by their act. Although he had parted with his entire interest in the estate under the demise, he was still liable to the plaintiffs, by virtue of privity of contract, on his express covenant to pay rent during the residue of the term for which the lease was continued, and at the increased rate. Nor is it a valid objection to this part of the plaintiffs’ claim, that no direct notice is proved to have been given to the defendant of the intention of the plaintiffs to terminate the lease at the expiration of five years from the date of the demise, upon which the right of the lessee and his assigns to continue the term was made to depend. The manifest intent of this clause in the lease was, that the notice to terminate the lease should be given to those who, in that event, had the corresponding right to continue it in force upon the terms prescribed. This had become vested solely in the assignees of the lease. The defendant had then no interest in the demised premises, and no right to exercise the power of extending the lease. He had no control over the matter whatever, and could not, by any act of his, vary or change his own liability on his covenants. A notice, therefore, to him would have been wholly useless. It was properly given to the assignees of the lease, in whom the entire interest in the estate and in the beneficial enjoyment of the covenants of the lessors had become vested by the act of the defendant. And their acknowledgment, that such notice was duly given was competent proof. The rule is general that the admissions of a person who is the legal representative of a party in any — 268 — subject matter shall be received against the party. 1 GreenL Ev. § 180. 3. The evidence fails to show such a destruction of the premises as to absolve the defendant from the payment of rent under the covenants in the lease. The building was, at most, only partially injured, and could have been repaired for a sum Jess than a single year’s rent. The usual stipulation in leases of buildings is, that if the premises are injured or destroyed by fire, the rent, or a proportional part thereof, shall be abated. But ii the present; case it is to be observed that the parties studiousl) omitted to provide for the contingency of an injury by fire, and confined their agreement to the destruction of the premises. It would require too great a latitude of construction to hold that the partial injury to the premises, caused by the fire, as disclosed by the evidence, amounted to such a destruction of them as to terminate the lease by virtue of the stipulations'contained in it. 4. The remaining objection to the' recovery of the rent is, that the action cannot be maintained by the plaintiffs jointly, but that several actions should have been brought by the plaintiffs for a breach of the covenant for its payment. This objection is founded on the memorandum annexed to and forming part of the lease, by which it is agreed that one half of the rent, which the lessee covenanted to pay to the two lessors jointly, should be paid to each of them separately. The general rule is well settled, that tenants in common may maintain a joint action to recover rent, when there is an agreement to pay the entire rent to the lessors. 1 Walford on Parties, 425. Wilkinson v. Hall, 1 Bing. N. C. 713. Powis v. Smith, 1 D. & R. 490, and 5 B. & Ald. 850. In the present case, the original agreement was to pay rent to the two lessors jointly. The effect of the memorandum was not to abrogate that covenant in the lease ; but only to regulate the mode of payment, and to prescribe the manner in which the lessee was to fulfil his covenant. Instead of performing his agreement, by a payment or tender of the whole rent to one of the joint lessors, as he might well do in the absence of a special agreement, he was required to pay a moiety to each. — 269 — But this does not make the previous covenant several, so as to change the remedy of the lessors for its breach into separate actions. This construction gives full force and effect to both clauses in the lease concerning the payment of rent, instead of annulling, by implication, the covenant to the plaintiffs jointly, a? would be necessary if we adopted the view urged in behalf of the defendant. Besides ; it is not to be overlooked that all the other covenants in the lease are made to the plaintiffs jointly; that the demise itself is joint, and the remedy of expelling the lessee, in case of nonpayment of rent, is also joint. It cannot be reasonably supposed that it was the intention of the par ties, by the memorandum, to bind the lessors to pursue each a separate remedy for breach of one covenant in a lease, in which all the other covenants were made to them jointly, and for breach of which they could pursue a joint remedy. 5. The defendant is also liable on his covenant for the payment of the taxes assessed on the premises for the year 1853. Tuckerman v. Sleeper, 9 Cush. 177. The only reasonable interpretation of which this covenant is susceptible is, that the lessee thereby agrees to pay such part of the entire tax assessed on the whole estate as the portion thereof demised by the lease bears to the entire premises. The precise sum could not be fixed in the lease, because it would necessarily be uncertain, and might vary from year to year. Nor could the mode of apportionment be well made to depend on the act. of the assessors of the city. They were official persons, bound to perform a certain duty, but they were not obliged to regard the special agreements of individuals as to the mode of assessing or apportioning taxes on their property. The plaintiffs had no power to compel a separate assessment of different parts of the same estate belonging to them. It would be little less than absurd to say, in the absence of any express stipulation to that effect, that the liability of the lessee, on his covenant for payment of the taxes assessed on the premises, was to depend on a voluntary act of the assessors, which they were not bound to perform, and which the lessors had nc right to ask of them. The taxes were legally assessed on the whole estate to the owner, and the liability of the lessee undei — 270 — his covenant to pay his proportion was thereby fixed. The mode of ascertaining the amount of this liability was not provided for in the lease, but was left to be adjusted between the parties. 6. The next point involves a question of more difficulty and importance. The plaintiffs claim to recover on the covenant in the lease, by which the lessee stipulates that he will not make or suffer any waste upon the premises during the term, and to prove a breach they rely mainly upon the removal therefrom of the gas and water pipes, which were put into the building by tenants thereof holding the same as assignees of the lessee. The defendant, on the other hand, contends that these articles having been placed on the premises by the tenants, did not belong to the plaintiffs, and that their removal does not constitute waste for which this action can be maintained against him. This raises the question, whether, under the circumstances proved in this case, the pipes annexed to the building for the purpose of conducting water and gas into the various rooms, can be regarded as “ tenant’s fixtures,” which term, in its strict legal definition, is to be understood to signify things which are fixed to the freehold of the demised premises, but which nevertheless the tenant is allowed to disannex and take away, provided he seasonably exert his right to do so. The cases on this subject are very numerous, and many of them, being from then: nature decided on the facts peculiar to each case, do not. afford much light upon the general principles which courts of justice have adopted in settling the mutual rights of lessor and lessee to property of this nature. Certain rules, however, may be taken as well settled by the uniform current of judicial decisions. The first and leading one is, that the law regards with peculiar favor the rights of tenants, as against their landlords, to remove articles annexed by them to the freehold, and extends much greater indulgence to them in this respect than it concedes to executors, remainder-men or any other class of persons. Elwes v. Maw, 3 East, 38. Grymes v. Boweren, 6 Bing. 439. Elliott v. Bishop, 10 Exch. 507. Smith Landl. & Ten. 264. The reason for this is, that — 271 — tenants usually pay to their landlords adequate rent, and it is therefore equitable that they should have the right to remove fixtures which have been put up by them for their own convenience and use, and at their own expense. Another well settled rule is that fixtures, which a tenant is allowed to disannex and take away, are comprehended within two classes, or are of a mixed nature, falling partly within and partaking of the nature of both. These classes are, first, those which are put up for ornament or the more convenient use of the premises, and are called domestic fixtures; second, those which are put up for the purposes of trade, and are known as trade fixtures. Gibbons on Fixtures, 22, 32. Smith Landl. & Ten. 264. Amos & Ferard on Fixtures, Pt. 1, c. 2, §§ 1,3, 4. In order to determine, whether in any particular case chattels annexed to the freehold come within these classes, so that the tenant has the right to remove them, several considerations are to be regarded. One of the chief of these is the mode of their annexation to the building; that is, whether they are annexed to the fabric of the house, and the extent to which they are so united, and whether they can be taken down and removed integre, salve et commode, without substantial injury to the building or to themselves. Another important consideration is the intention with which they were annexed by the tenant, and the purposes which they were designed to answer; that is, whether they were intended for a permanent and substantial improvement to the realty, perpetui usus causa, or, as it is sometimes said, pou/r urn profit del inheritance; or whether they were put up and used for a temporary object, or for the more convenient occupation and enjoyment of the premises for the particular purpose for which the tenant used them, so that they were useful and necessary rather to the comfortable and convenient occupation of the building than to the building itself. Amos & Ferard on Fixtures, Pt. 1, c. 2, § 1. Smith Landl. & Ten. 270, note. Buckland v. Butterfield, 2 Brod. & Bing. 54. Hellawell v. Eastwood, 6 Exch. 295. The application of these rules and principles to the case at bar is decisive of the nature and character of the articles which — 272 — were removed from the demised premises by the tenants. They were but slightly annexed to the building, and were removed without any substantial damage to the building, and without essential injury to themselves. The premises were intended for and demised as a tavern and boarding-house. The articles were themselves of a mixed nature, and may well be regarded as combining the qualities of both domestic and trade fixtures. They were designed by the tenants to be used in carrying on the business for which the premises were occupied, and they were also adopted for the more easy and comfortable use and enjoyment of the building. They were useful and convenient, rather than essential and permanent additions to the premises. At the time of the demise, the house was supplied with water and furnished with light by other means. The pipes were not necessary therefore to the complete enjoyment of the premises. They were only added to subserve the domestic purposes to which they were applied, and to render the premises more suitable for the particular use to which they were appropriated. It would be quite useless to multiply authorities or seek out analogies, in support of the view we have taken of this part of the case. We must be governed in questions of this nature very much by the circumstances of each case. But it may not be inappropriate to refer to the case of Grymes v. Boweren, 6 Bing. 437, in which it was held that a tenant might remove a pump which was attached to a perpendicular plank resting on the ground at one end and at the other end fastened to the wall by an iron pin, which had a head at one end and a screw at the other, and which went entirely through the wall. If this was not a part of the realty, it can hardly be contended that water pipes, slightly affixed to the ceiling, and passing through holes in the floors, are so far fixed, that they cannot be removed by the tenant, but belong to the owner of the premises. So too in a recent case, already cited, Mr. Baron Platt said: “ If a landlord demised a house with grates or gas fittings at an entire rent, they would belong to him at the expiration of the term. But if he had let the house unfurnished with these conveniences, and the tenant, for the enjoyment of his occupation, fixes them — 273 — in the house, the tenant, unless he had contracted to leave them behind, might undoubtedly remove them during the term.” Elliott v. Bishop, 10 Exch. 512. Upon the facts proved in this ease, we are therefore of opinion that the plaintiffs fail to prove any breach of the covenant against waste. For the unavoidable injury resulting to the premises from the removal of the fixtures, the plaintiffs may perhaps have a remedy either against the defendant or those who severed the fixtures from the building. See Amos & Ferard on Fixtures, (2d Amer. ed.) 89. But it is clear that it cannot be enforced in this action. 7. In regard to the removal of the tiles, it is sufficient to say that the rights and remedies of the parties must depend on the special agreement entered into between them, subsequently to the date of the lease, by which liberty to put down the tiles was expressly given to the lessee, and stipulations were made concerning the right of the tenants to take them away, and the landlord to purchase them, upon certain terms therein specified. When there is a special-agreement between landlord and tenant regarding fixtures, that overrules and supersedes the general rules of law regulating their mutual rights and obligations. Naylor v. Collinge, 1 Taunt. 19. Thresher v. East London Water Works, 2 B. & C. 608, and 4 D. & R. 62. Amos & Ferard on Fixtures, 108, 109. The plaintiffs must seek their remedy on this special agreement, if the removal of the tiles was a violation of its stipulations. Judgment for the plaintiffs.