Merchants National Bank v. Ryerson

Wait, J. This action is brought on a covenant contained in a lease of certain premises from the plaintiff to the defendants. It is not an action for rent or for payment for use and occupation by a tenant, but an action to recover an amount agreed to be paid upon the happening of certain events which have occurred. The plaintiff, after the termination of the tenancy, before the end of the term prescribed in the lease, could have permitted any one to occupy and could have maintained actions to collect any amounts due from such person either as rent or payment for use and occupation without prejudicing its right to recover upon the covenant made by the defendants. The actions against Ryerson were not based upon the covenant here sought to be enforced, and do not constitute any election of remedy which bars the present action. See Dalton v. American Ammonia Co. 236 Mass. 105. Under the decision in Woodbury v. Sparrell Print, 187 Mass. 426, 431, the action could not be brought until after the expiration of the full term written in the lease. The plaintiff can recover on its second count. The rulings and finding by the trial judge were right. Exceptions overruled.