Peaks v. Cobb

Knowltok, C. J. The defendant leased the premises in his building to one Mrs. St. Leger. The plaintiff was injured upon a walk leading to the building, which was alleged to have been negligently left by the defendant in a dangerous condition. It was assumed at the trial that if the plaintiff was a member of Mrs. St. Leger’s household, lawfully claiming in her right, there was evidence proper for the consideration of the jury. In the defendant’s lease to Mrs. St. Leger there was a cove-' nant of the lessee not to “lease, nor underlet, nor permit any [555] other person or persons to occupy or improve the same, or make or suffer to be made any alteration therein, but with the approbation of the lessor thereto in writing.” The plaintiff occupied a room in the premises leased to Mrs. St. Leger, under a contract with her to pay a certain price per week for the room and its furnishings and the care of it, which care was provided by Mrs. St. Leger. The defendant contends that this contract was a violation of the covenant in the lease, and that the plaintiff was not rightfully there, and that the defendant owed her no duty. The only question submitted to us is whether the evidence in regard to the covenant in this lease made it the duty of the judge to order a verdict for the defendant. It was decided in White v. Maynard, 111 Mass. 250, that such an arrangement with a lodger is not a leasing or underletting of the premises within the meaning of such a covenant. See also Day v. Lawrence, 167 Mass. 371, 374. The principal contention of the defendant is that the words “ nor permit any other person or persons to occupy or improve the same,” refer to a different kind of occupation from that of a tenant, and that they forbid one holding under such a lease to contract with a boarder or lodger for the occupation by him of specific rooms in the leased premises. We think that this contention is erroneous. The words “ occupy or improve ” are used here in reference to a possession which would enable one to maintain trespass against an intruder. They are joined to the earlier part of the covenant, not to add another kind of prohibited occupation to that which is previously forbidden, but to prevent the tenant from suffering or permitting a sub-tenancy, as well as from actively creating it. We are of opinion that no breach of the covenant was shown, and that there is nothing in this part of the evidence to preclude the plaintiff from claiming in the right of the defendant’s lessee. Judgment on the verdict.