Gingrass v. Mather

Grant, J. (after stating the facts). It is matter of common knowledge that mining operations require large capital, and are seldom carried on by individuals, but almost universally by corporations. Options or leases for long terms of years are usually obtained from the fee owners by individuals, corporations formed, and the leases then assigned to the corporations. The business in this case was done in the usual way. While this fact would not release the defendant from the obligations of his lease,' it is, however, a fact important to consider in connection with the other facts in the case, and the manner in which the parties dealt with each other after the execution of the lease and until suit was brought. [586] The several written agreements with the Michigan Gold Company, above mentioned, changing the terms of the original lease, are consistent only with the recognition of the company as plaintiff’s tenant, and a release of the defendant from all obligation under it. Some of these agreements were executed when defendant was an officer of the company, and others when he was not an officer, but only a stockholder. Plaintiff could not have two tenants, to either of which she might look for rent at her option. Had the dealings with the company involved only the payment of rent, undoubtedly the defendant would not be discharged from liability. Payment of rent alone does not operate as a surrender, or a recognition of an assignee as the landlord’s tenant. The rule, however, is well settled that, where the landlord’s dealings with an assignee of the lease, by written agreements and otherwise, are consistent only with the theory that the parties are dealing as landlord and tenant, the. original lessee is released, and the assignee is accepted by the landlord as his tenant. While it is probably true that defendant had knowledge of all these agreements, and some of them were made at his request as an officer of the company, this fact does not relieve the plaintiff from the legal effect of her conduct and writings. She was dealing with an entity entirely distinct from the defendant, Mather. If she had desired to hold Mr. Mather when these agreements were made changing the terms of the sublease, she should have said, done, or written something to indicate her intention to hold the defendant, or to obtain from him consent to a waiver of the changes. Plaintiff undoubtedly knew at the beginning that this lease was to be assigned to the company, and that it was to. carry on the business, develop and work the mine. Defendant was in possession of the property, if at all, only for a few days; and at no time did she make any claim upon defendant for the payment of royalty, or attempt to negotiate with him individually in regard to the various changes which were made. The [587] court correctly held that the lease, as to defendant, was surrendered by operation of law. The case comes within the principle of the following cases: Logan v. Anderson, 2 Doug. 101; Donkersley v. Levy, 38 Mich. 54; Walsh v. Martin, 69 Mich. 29 (37 N. W. 40); Coe v. Hobby, 72 N. Y. 141 (28 Am. Rep. 120); Talbot v. Whipple, 14 Allen, 177; Levering v. Langley, 8 Minn. 107; Fifty Associates v. Grace, 125 Mass. 161 (28 Am. Rep. 218). Judgment is affirmed. The other Justices concurred.