I should be glad to affirm this judgment if it could be done consistently with the rules of law; but there are insuperable difficulties in coming to that concluclusion.
The evidence was perhaps sufficient to charge the defendants as assignees of E. A. Ingraham Co., though the terms of the receipts for rent which the plaintiff received, would have raised some questions on that point. But it is a conclusive objection to a recovery upon that ground, that the action was not upon the lease, and that it did not seek to charge the defendants on the ground of privity of estate, but upon an independent letting of the plaintiff to them. And if the difficulty arising out of the pleadings could be obviated by conforming them to the proofs according to the code (§ 175), the same difficulty would be presented by the charge of the judge, by which the jury were instructed that the plaintiff could not recover, except upon the ground of an independent letting by him to the defendants. The idea of a recovery upon the original lease against the defendants as assignees, was thus entirely precluded.
The question to be considered therefore is, whether there *Page 467 was such evidence of a letting by the plaintiff to the defendants as was suitable to be submitted to the jury. I do not appreciate the objection urged by the defendants' counsel, that such a letting could not be set up, on account of the existence of the lease from the plaintiff to Ingraham Co. They had failed in business, and had gone out of possession. If then the plaintiff had let the premises to the defendants by a new and independent arrangement, at the same rent which the former lessor had agreed to pay, or any other rate of compensation, and the defendants had occupied for the residue of the original term, and the first lessees had interposed no obstacle, and had not interfered with the defendants' enjoyment, the present defendants could not have set up the continuance of the former demise as an answer to the claim made against them for the rent which they had agreed to pay. But there was no proper evidence of a fresh letting by the plaintiff to the defendants. The plaintiff and his agent, and the defendants had a conversation, in which it was assumed that Ingraham Co. had failed. The defendants said that the plaintiff need not fear or be concerned about the rent; that they intended to occupy the store for the same business. This was pretty vague, but possibly it might have been enough, connected with the subsequent occupation by the defendants, to enable the jury to find a new letting, had there been nothing else in the case. But the plaintiff continued to give and the defendants to receive, at the expiration of each quarter, written receipts for the quarterly rent, at the rate mentioned in the original lease, stating on their face in each instance that the money was paid for the account of E. A. Ingraham Co. This is precisely the same thing as though the plaintiff had continued to receive the rent as it accrued, from the original lessees. It was quite competent for these lessees, notwithstanding their failure in business, to retain the leasehold estate granted to them by the plaintiffs by the original lease of the store, unless they should be divested of it by legal process, or by *Page 468 an insolvent's assignment, and it seems to me that they did so retain it by causing the rent to be regularly paid. These payments, by the terms of the receipts which were given for them, were referable to the original lease, and to no other subject; and they kept that lease in full vigor down to the last quarter day preceding the quarter for which the plaintiff sued the defendants. The arrangements between Ingraham Co. and the defendants, by which the latter actually advanced the several amounts paid for rent, were not disclosed, and they are not material. The plaintiff consented to receive his rent from the parties named in the written lease by the hands of the defendants, and in the absence of any fraud or mistake, he cannot say that there was not on each occasion of such payment an affirmance of the continued existence of that lease. It strengthens rather than impairs the force of this evidence, that the defendants dictated the terms of the receipts. That circumstance shows that they were unwilling to part with the money, except on the footing of payments made by or on account of Ingraham Co., in satisfaction of the liability of those lessees. The giving and accepting of these receipts was a conclusive answer to any inference which might otherwise have arisen from the conversation which has been referred to, and it was erroneous to submit to the jury a theory entirely hostile to the legal effect of these transactions.
The other conversation in which the defendants claimed consideration upon the question of a further lease, for their punctuality in the payment of the rent, did not materially strengthen the plaintiff's case. The payments of rent referred to were, of course, those made in behalf of Ingraham Co.; for the defendants made no other payments. The nature and effect of these payments were determined by the co-temporary receipts, and were not at all changed by this loose reference to them in that conversation.
I am in favor of reversing the judgment against the defendants, and of ordering a new trial. *Page 469