Fifty Associates v. Grace

Endicott, J. By the terms of the original lease, the defend ant covenants and agrees with the lessor that he “ will use and [163] occupy the premises for and as a dry goods and millinery store.” It is clear that he could not use it for any other purpose, and, upon breach of this covenant, the plaintiff could reenter, as provided in the lease. The lease also contains the covenant that the defendant will not lease or underlet the premises without.the written consent of the plaintiff or those having its estate. The assignment to the Milkmans was made by the defendant with the written consent of the plaintiff, and they agreed to occupy and use the premises for the millinery business and sale of hair goods. Whether this was a change in the occupation prescribed by the lease is immaterial; if it was, the defendant’s liability on the covenants to pay rent would continue, for his assignment was assented to by the plaintiff with the express stipulation that its claim against him should not be affected by the assignment and its assent thereto. But by the assignment to Sibley by the Milkmans, to which also the plaintiff consented in writing, Sibley was to use and occupy the premises as an office for the Boston Dye House. This was a new and different occupation of the premises, and Sibley having been allowed so to use and occupy with the assent of the plaintiff, and without the assent or knowledge of the defendant, the defendant was released from liability on the covenant to pay rent, certainly while such occupation continued, for he had covenanted to pay only according to the terms of the lease. It is contended by the plaintiff that the covenant to use the premises for a millinery store was for the benefit of the lessor, and could be waived. This may be true while the defendant was in occupation; but, after he had parted with the estate, though still liable on his covenants to pay rent, a new contract could not be made in regard to the purpose for which the premises should be used, without his consent, given in such a manner and under such circumstances as to show that he was still to be held liable under his lease. The effect of the assent by the plaintiff to the assignment to Sibley, for a different use and occupation, was to create a new tenancy inconsistent with the terms of the lease to the defend' ant, and his liability for rent, while such tenancy continued, ceased. See Amory v. Kannoffsky, 117 Mass. 351, and cases cited. Judgment for the defendant