Opinion
September Term, 1855
Isaac Dayton, for the appellant.
R.F. Hicks, for the respondent.
If it were not for the special provision in the lease, the reëntry by the plaintiff would have put an end to the covenant of the lessee to pay rent. The parties were aware that this would be the legal consequence of a reëntry, and they undertook to make a conventional arrangement which would place them on a different footing. This court held, in the case of Gould v. Hall ( ante 127) that such a provision in a lease was valid and enforceable after reëntry by the lessor. The plaintiff, by the terms of this lease, was to act as the agent of the lessee in again leasing the premises, and the latter was to pay "all loss or difference of rent for the residue of the said term." As a large portion of the term was unexpired when the plaintiff reëntered, and as the premises were again let, pursuant to the arrangement, for a period covering the entire residue of the defendant's original term, it is obvious that the "loss or difference of rent" referred to would consist of the amount of the rent payable by the original lease which would remain after applying that which should be payable and which should be realized under the new lease for the remainder of the original term. If the new lease should prove unavailable to produce the rent payable by its terms, without fault on the part of the plaintiff in accepting the new tenant, or in enforcing payment, the loss would undoubtedly fall on the first lessee. This results from the agreement that the plaintiff should act as the agent of the lessee. But it could not be ascertained until the end of the year whether a loss would arise from this cause or not. When, therefore, the present action was commenced, it could not be truly affirmed that the loss or difference of rent referred to in the lease, would be greater than the difference between the amount of the old rent from the time the lessee had ceased to pay, and that which was reserved by the new lease from the time it commenced to the end of the term; and the facts which occurred after the commencement of the action show that this was the precise difference. If the plaintiff had been unwilling to run the risk of collecting the rent from the new tenant, he should have waited until that rent had fallen due and a default had occcurred in paying it. By prosecuting this action pending the term, he must be taken to have assumed that the new rent would be paid, and to have sought to recover the difference between that rent and the rent which the first lessee agreed to pay. If he was willing to take that hazard, I see no objection to his having commenced this action, as he did, at the end of the second quarter. The amount of the deficiency, which upon these principles he will be entitled to recover, is not as much as would have been recoverable under the former lease, from the time the lessee ceased to pay to the end of the second quarter; so that the defendant is not compelled to pay faster than he would have been by the terms of the primary covenants.
The plaintiff is not entitled to be allowed for the improvements which he put upon the premises before leasing them the second time. The spirit of the agreement required him to lease again the same subject which he had demised to the first lessee. If he elected to make it more valuable, it was without any authority from the lessee or his surety, the defendant. They cannot complain, as they are not prejudiced by the improvements; and if they are benefited by them, it is an advantage which the plaintiff has chosen to confer upon them without any agreement or obligation on their part to reimburse him.
I think the plaintiff was entitled to recover the Croton water rent. It was payable 1st May, 1852; and the lessee having failed to pay it, the plaintiff paid it for him, and is entitled to recover it from the surety.
But the plaintiff was permitted to recover $85.40. This is considerably more than he was entitled to upon the principles already stated. Abbott was to pay $500 as rent for the year. Of this he paid the first quarter, being $125, before this suit was commenced. The plaintiff relet the premises for $350, which sum was actually paid him. Thus he received for the use of the premises during the year $475, leaving a deficiency of only $25, which sum, with the water tax, was all he should have recovered.
The judgment should therefore be reversed and a new trial ordered.
MARVIN and HAND, Js., also delivered opinions to the same effect.
Judgment accordingly.