Landlord and Tenant, Construction of lease and covenants. Practice, Civil, Election of remedy.
A lease to two lessees of a room in an office building provided in substance that, if the lessees failed to perform any of the covenants in the lease, the lessor might enter and repossess the premises and the lessees' estate should end; that, upon such termination, the lessees would "remain responsible for the residue of the said term for the full rent herein reserved, whether the demised premises remain vacant or not, and shall be credited only with such amounts as shall be actually realized therefrom by the Lessor." The lessees failed to pay rent and, after one of them had vacated, the lessor took possession. No further rent being paid, an agent of the lessor in his own name, after the term and after demand only upon the lessee who was in possession when the lessor entered, brought an action against that lessee for rent, not therein relying on the lease. The lessor, while the former action was pending, brought an action in his own name against both lessees upon the lease. Thereafter, and after the defendant had set up the former action and the eviction in bar, the action formerly brought was discontinued. Held, that (1) Under the provision of the lease above quoted, the eviction did not release the lessees from liability under the lease; (2) The former action was not an election preventing the maintenance of the present action.
WAIT, J.
This action is brought on a covenant contained in a lease of certain premises from the plaintiff to the defendants. It is not an action for rent or for payment for use and occupation by a tenant, but an action to recover an amount agreed to be paid upon the happening of certain events which have occurred.
The plaintiff, after the termination of the tenancy, before the end of the term prescribed in the lease, could have permitted any one to occupy and could have maintained actions to collect any amounts due from such person either as rent or payment for use and occupation without prejudicing its right to recover upon the covenant made by the defendants.
The actions against Ryerson were not based upon the covenant here sought to be enforced, and do not constitute any election of remedy which bars the present action. See Dalton v. American Ammonia Co. 236 Mass. 105.
Under the decision in Woodbury v. Sparrell Print, 187 Mass. 426, 431, the action could not be brought until after the expiration of the full term written in the lease. The plaintiff can recover on its second count.
The rulings and finding by the trial judge were right.
Exceptions overruled.