Shea v. McCauliff

Hammond, J. The lease to the plaintiff recites that it is subject to the prior lease to McCauliff and Shea, and provides that “ all rents received on account of said lease are to be credited as part payment under the terms of this lease ” [the lease to the plaintiff]. It is plain that the word “received” means received by the lessors, and the language fairly implies that the rent to accrue under the prior lease was to remain payable to them notwithstanding the second lease. A lessor may assign the rent to become due upon a lease without granting the reversion, or he may grant the reversion and reserve the rent. Hunt v. Thompson, 2 Allen, 341. Leonard v. Burgess, 16 Wis. 41. Taylor, Land. & Ten. § 426, and cases cited. Even if this second lease is to be taken as a grant of the reversion, the lessors still reserved the right to the rent payable under the first lease, or, in other words, they reserved the rent, and hence the obligation of F. A. McCauliff and Company to pay to them the rent remained intact. In this respect this case differs materially from Harmon v. Flanagan, 123 Mass. 288, in which the rent was assigned with the reversion. While, after the execution of the second lease McCauliff paid no rent to his lessors but paid rent only to the plaintiff upon bills presented in the plaintiff’s name, and while after October 1, 1900, no demand for the rent was made upon McCauliff except by the plaintiff, yet, notwithstanding all this, the judge, in view of the fact of the reservation of the rent, may have found that in collecting the rent from McCauliff the plaintiff was in reality acting as the agent of the lessors, and also that, in paying to the lessors the sums which were payable under the first lease after the default of McCauliff, he was paying a debt [572] of the late firm of F. A. McCauliff and Company, and to that extent discharging its obligations to the lessors under the first lease. Such a finding brings the case within the condition of the bond. Judgment on the finding.