The defendant was lessee of the plaintiff of an estate on Washington street, Providence, a part of which was taken by the city for a highway under the act of 1854. The lease expired April 1, 1895. Rent was paid to December 1, 1894; but the city elected to make the improvement, which would cut off a portion of the premises, June 25, 1894. The defendant continued in occupation of the whole estate until May 16, 1895, and the plaintiff sues for use and occupation of the whole from December 1, 1894, to May 16, 1895.
Upon these facts the defendant asks the court to rule:
1. That the plaintiff can only recover, in any form of action, for the part which the city did not take for the street.
2. That he cannot recover in this action, because his remedy is in covenant and not in assumpsit.
3. That the plaintiff having brought a suit in ejectment on the first day of January, 1895, which was subsequently *Page 98 discontinued, he cannot recover in this action for any part or the premises after that date.
4. That another action in ejectment having been commenced April 5, 1895, in which judgment was rendered, the plaintiff cannot recover in this action after that date.
B. That the defendant should be allowed in set-off the payments made from June to December, 1894.
(1) Upon the first request the plaintiff claims that, as the defendant occupied the premises under his lease down to May, 1895, he is liable to the plaintiff as his landlord for use and occupation, even though a portion of the lease had ceased by operation of law. In support of this position he relies on Emmesv. Feeley, 132 Mass. 346. In that case, however, the decision of the court was based upon the fact that the action of the city did not take the fee of the land from the plaintiff, only an easement; and hence, before actual eviction or a conveyance by the plaintiff, the defendant continued to be a tenant of the plaintiff.
In this case the act provides that the city, upon its election, shall become seized of the land, which implied at least an estate of freehold; and also that the lease of the part taken shall be absolutely discharged, but valid as to the residue. It is therefore exactly in point with O'Brien v. Ball, 119 Mass. 28, which holds that when land is taken under a provision that title shall vest in the city, the liability of a lessee to pay rent for such land to the lessor ceases on the taking, without any eviction by, or attornment to, the city.
As the law gives to the plaintiff full value for his land and damage, and declares the lease void as to the part taken, I can see neither law nor equity in his claim for use and occupation by the defendant, and I therefore rule that he cannot recover for the part taken by the city.
(2) While the act says that the lease shall remain valid as to the residue, and that the rent shall be justly apportioned, it does not follow that the form of action must be covenant. If a contract under seal be varied in its terms by a parol agreement, such substituted contract must be the subject of *Page 99 an action of assumpsit and not of covenant. Wait Act. Def. 355. While it is true that the parties have not varied their contract, it has been varied by act of law. Neither the premises under the lease nor the rent to be paid are the same as they were before the land was taken by the city. In principle it is the same as though the parties had agreed to discharge a part of the lease and apportion the rent, for which the remedy must be in assumpsit for use and occupation. The defendant's second request is therefore refused.
The third request is refused.
The fourth request is allowed.
The fifth request is refused. I do not find that a payment was made in January, 1895. The other payments from June to December were not made under a mistake of fact, but of law. Both parties appear to have supposed that the plaintiff was entitled to receive, and the defendant bound to pay, rent according to the terms of the lease. The defendant says that he did not know of the city's election until January, 1895, but this does not make a mistake of fact. As lessee he was a party to the proceeding, and is charged with notice.
Upon these findings I decide that the plaintiff is entitled to recover for the land not taken by the city from December 1, 1894, to April 5, 1895. The quantity of land was a little less than half, but was the rear and least valuable part of the house. I apportion the rent at one-third, which for four months and five days amounts to $277.75.