Opinion
12-08-1920
MILLER et al. v. NEWTON-HUMPHREVILLE CO.
Arthur P. Egner, of Newark, and McCarter & English, all of Newark, for complainants. E. R. McGlynn, of Newark, for defendant.
Bill by Henry C. Miller and others against the Newton-Humphreville Company to restrain subletting of premises. Temporary restraint granted.
Arthur P. Egner, of Newark, and McCarter & English, all of Newark, for complainants.
E. R. McGlynn, of Newark, for defendant.
FOSTER, V. C. Complainants seek an injunction to restrain defendants from assigning its lease on or subletting the premises Nos. 520-522 Broad street, and Nos. 19-21 Atlantic street, Newark, which are owned by complainants, and which they, by a lease dated September 27, 1916, demised to the Bonnell Motor Car Company and others for the term of five years, from November 15, 1916. This lease contained the following clause:
"And the said party of the second part do further promise and agree that they will not relet or underlet the whole or any part of said premises, nor assign this lease * * * without the written consent of the said party of the first part."
By agreement dated September 9, 1918, the lessees, with the consent of complainants, sublet the premises to the defendant, and this agreement contained the provisions that the defendant "agrees to abide by and to be bound by the terms and conditions of the lease above referred to [the original lease], except in so far as said terms are changed and modified by this agreement."
The agreement did not in any way change or modify the terms of the lease, requiring the consent of complainants to any assignment of the lease, or to any subletting of the premises. Defendant has recently requested complainants' permission to sublet the premises to another, and this has been refused, and the defendant has, notwithstanding this refusal, sublet the whole or some part of the premises, or threatens to do so.
Defendant insists the court is without power to grant the restraint sought because complainants, by consenting to the subletting from the Bonnell Company, the original leasee, to defendant, removed from the lease the condition or covenant requiring the lessor's consent. This contention is based on the rule in Dumpors' Case, 1 Coke, 119b, 4 Rep. 119.
From my consideration of the authorities cited in support of this rule I find that a distinction has almost uniformly been drawn by the courts in the application of this rule between an assignment of the lease and a subletting, and that the unsatisfactory rule of the Dumpor's Case has been limited to assignments of the lease, and has not been extended to a subletting of the premises, regarding such subletting as a continuing condition of the lease, which is not extinguished by a single consent. Gear, L. & T. p. 285; Taylor, L. & T. par. 501. The true rule applicable to the present situation is stated in 18 A. & E. Ency. of Law, at page 681, as follows:
"If the lessor consents to a subletting the sublease is, of course, valid, though the lease expressly forbids all subletting, but the consent of the lessor to one subletting, or the waiver of one breach of the covenant against subletting, is no defense to a breach of the covenant by another and distinct sublease."
And this I think must be the rule to be followed in a case where, as here, the parties have expressly agreed that all the terms of the lease, including the provision against subletting, is made a condition of the consent to the present subletting, for by this provision of the agreement the original lease became a part of contract to sublet; and, being such, it is clearly within the power of a court of equity to compel the specific performance of all the terms of this contract, where the remedy at law is inadequate, as it is under the circumstances present here.
I will advise that the temporary restraint prayed for be granted.