
    Harmony Lodge v. White et al.
    1. A lessee remains liable on his express agreement to pay rent, notwithstanding he may have assigned his lease with the lessor’s assent, and the. lessor has accepted rent from the assignee.
    2. But where the obligation of the lessee to pay rent is only that which is implied by law from his occupation of the premises, his assignment of the lease and surrender of possession to the assignee, with the assent of the lessor, extinguishes the privity of estate between the lessor and lessee, and the consequent implied liability of the lessee to pay rent.
    5. The assent of the lessor to such assignment, where nothing to the contrary appears, may be implied from his charging the rent to the new tenant and accepting payment thereof from him.
    Error to the Superior Court of Cincinnati.
    The action was brought in the Superior Court of Cincinnati by the master and wardens of Nova Cesarea Harmony Lodge, No. 2 (a corporation), against White, Corbin, Bouve -& Co., to recover two monthly installments of rent, viz., $291.67 for each of the months of February and' March, 1871.
    The petition is founded on an alleged lease for two years, payable iu monthly installments. The answer denies a leasing for the term of two years, and alleges that the defend•ants remained in possession of the premises, after the expiration of a lease for one year, as tenants from mouth to month, to November 1, 1870, when they surrendered the-possession, by consent of the plaintiff, to another firm,, which remained in possession of the premises until January 31, 1871, when it gave up possession thereof to the plaintiff.
    The reply denies the allegations of the answer.
    At the trial a jury was waived, and the case was submitted to the court, which found “ the following to be all the-facts in the case,” which were reduced to writing, and made part of the record, at the plaintiffs request:
    “1. That the premises described in the petition had been leased by the plaintiffs to Meyberg & Co. for a term of five-years, from July 1,1864, to July 1,1869; that in the spring of 1868, Meyberg & Co., by plaintiff’s consent, left the premises, and were released from further liability; and by parol agreement between plaintiffs and defendants the defendants occupied the premises from July 1, 1868, to July 1,1869, as-tenants of plaintiffs for the remainder of the five years, covered by the Meyberg lease, at a rent of $3,500 per annum, payable in monthly installments of $291.67 each.
    “ 2. About July 1,1869, the defendants applied to plaintiffs-for a renewal of said lease for five years, and at a reduced rent, to which, on July 7, 1869, the plaintiffs replied by written notice, stating that defendants could have a lease of the premises for two years from July 1, 1869, at- an annual rent of $3,500. This notice was delivered to Henry George,, the defendants’ bookkeeper, at the defendants’ place of business, where he was found in charge at the time, all the defendants being then absent from the city of Cincinnati.
    
      “ 3. The defendants made no reply to this written.notice,, nor is it shown that it was ever brought to their notice, except by being left with their said bookkeeper, and as hereinafter stated in finding 4 ; but they continued in occupation of the premises, paying the same rent as before in monthly installments of $291.67 each.
    “4. In the fall of 1868 the defendants had sublet a portion of said premises to ~W. T. Tillinghast, but for no definite time. In the summer of 1869 defendants desired Tillinghast to put in' a large press on the premises, which, im view of the large expense thereof, Tillinghast declined to-do, because of the uncertainty of his tenancy. The bookkeeper, George, then showed to Tillinghast the written notice referred to in finding 2, and Bouve, one of the defendants’ firm, and who was in charge of defendants’ business,, said to Tillinghast that the defendants could stay in the-building two years longer if they wanted to, and Tillinghast. could stay as long as they did. Whereupon Tillinghast bought the press and put it in.
    “ 5. In May, 1870, the defendants applied in writing to-plaintiffs for a reduction of the rent from July 1, 1870, to-July 1, 1871, from $3,500 to $3,000-, which the plaintiffs declined to do.
    “ 6. The defendants occupied the building until November,. 1870, when they gave up possession to L. A. Corbin & Co., a new firm, composed of L. A. Corbin, W. H. Prescott (two-of the defendants), and James T. Prescott. A receipt was given to them by plaintiffs, of which the following is a. copy:
    “£ Cincinnati, November 30,1870.
    ££ £ Messrs. L. A. Corbin & Co.:
    ££ ‘ To the Master and Wardens of N. C. Harmony Lodge,. No. 2, Dr.
    “£ For one month’s rent, due this day, - - $291 67
    ££ £ Received payment,
    “£ Chas. R. Folger, Secretary.’
    
    ££ 7. On January 31,-1871, L. A. Corbin & Co. left the premises,-the plaintiffs declining to accept a surrender; and the premises remained unoccupied during February and March, 1871, and neither defendants nor L. A. Corbin &. Co., nor any one for them, have paid the plaintiffs the rent for said months.”
    The court rendered judgment in favor of the defendants.. The plaintiff excepted, and filed a motion for a new trial,, for the reason that the judgment was not sustained by the-findings of- fact. The motion was overruled, and the plaintiff excepted.
    Upon proceedings in error, on the ground that the judgment was not warranted by the findings of fact, the judgment was affirmed by the superior court at general term.
    To reverse both judgments, the plaintiff prosecuted his petition in error in the supreme court.
    
      Sage & Hinkle, for plaintiffs in error:
    L. A. Corbin & Co., being in possession of the premises, were, for that reason, liable for the rent. The defendants were also liable by virtue of their contract to pay it.
    A lessee may assign his rights and interest in the premises, but can not thereby discharge himself of his obligations. A landlord can not without his consent be deprived of the benefits of a contract made with a particular tenant, to whose care and responsibility he trusted when he granted the lease. The lessee remains liable upon his original contact after his assignment, and may be sued on it even if the landlord has accepted the assignee as his tenant and collected rent from him. 2 Platt on Leases, 352; Smith’s Landlord and Tenant, 293; Taylor’s Landlord and Tenant, sec. 438 and cases; Sutliff v. Atwood, 15 Ohio St. 186; 1 ■Chitty on Contracts, 460, note E.
    
      King, Thompson & Maxwell, and Charles T. Thompson, for defendants in error :
    The defendants’ liability was discharged by giving up the premises to L. A. Corbin & Co., with the consent of the plaintiffs. Taylor’s L. & T. 515; Page v. Mlsworth, 44 Barb. 636.
    A lessee may discharge himself from his implied obligations by assigning with the consent of the lessor. Sutliff v. Atwood, 15 Ohio St. 186. Such consent is shown by receiving rent from the assignee. Taylor’s L. &. T., sec. 438; Wadhum v. Marlow, 8 East, 316; Auriol v. Mills, 4 T. R. 94.
   Day, Chief Judge.

The record, upon the exceptions taken in the court below, presents a single question for our determination : Was the judgment in favor of the defendants warranted by the facts found ?

By a parol agreement between the parties, the plaintiff leased, the premises to the defendants for one year from, July 1, 1868, at a rent of $3,500, payable in monthly installments.

About the time of the expiration of the lease, and again a year afterward, the parties negotiated for a new lease, differing in the term and amount of rent; but, upon the facts found, we think the court below might well hold that their minds never met in agreement upon a new lease, and that by reason of the continued possession of the premises by the defendants after the expiration of the lease for one year,, and the acceptance of monthly payments by the plaintiff at the same annual rent, the defendants were to be regarded as tenants holdiug over from year to year. This view of the case is the only one consistent with all the facts found.. They fail to establish an express lease for the period in question. The possession of the defendants does not imply an acceptance of the proposition of the plaintiff for a lease of two years, for it was referable solely to the original lease; and the application of the defendants fora reduction of the rent the following year, evinces their non-acceptance of the lease proposed, even if the proposition came to their knowledge. But where a tenant holds over by the consent of the lessor, the law presumes the holdiug to be upon the terms-of the original lease.

The defendants then being in possession under the implied lease from July 1, 1870, to July 1, 1871, on the first day of November, 1870, gave up the premises to the new firm of L. A. Corbin & Co. From that time the plaintiff " received the rent from the new firm, so far as it is shown to have been paid ; and for that of November, 1870, the-plaintiff', by its proper officer, made out a bill charging the new firm as its debtor therefor, and gave a receipt for that monthly installment to the new firm.

The plaintiff', then, must be presumed to have known that the defendants had assigned their lease to the firm of L. A. Corbin & Co. With that knowledge the new firm was. treated as the tenant of the plaintiff. We can not, therefore, say the court below was not warranted in holding that the plaintiff, as a matter of fact, consented to the assignment. There being nothing to the contrary, the facts found prima facie warranted the conclusion that such assent was given.

But the defendants were not tenants by virtue of an express agreement when they assigned to the new firm. They were holding over from year to year only upon such terms as were implied by law. Their obligation to pay rent to the plaintiff was implied from their possession of its premises. When their possession ceased, and the plaintiff received rent from another tenant in possession upon his implied promise arising therefrom, that of the defendants could no longer be implied, for there was no privity of estate between the parties on which it could be based.

Had the tenancy of the defendants been in pursuance of an express lease, they would, undoubtedly, have remained liable, by virtue of the personal privity of the contract, notwithstanding their assignment of the lease. 2 Platt on Leases, 352.

But this rests on a principle applicable only to leases by express agreement. In 1 Washburn on Real Property, 493 (4 ed.), it is said: “ There is an important distinction to be observed between express and implied covenants in a lease, since oue who enters into an express covenant remains bound by’it, though the lease be assigned over, while such as are implied are co-extensive only with the occupation of the premises; the lessee, for instance, not being liable under his implied covenant for rent after his assignment to another, and the acceptance of rent by the lessor from the assignee.” The same doctrine is laid down in 2 Platt on Leases, 355; and is recognized and clearly stated by White, J., in Sutliff v. Atwood, 15 Ohio St. 194.

Since, theu, the defendants’ obligation to pay rent to the plaintiff was not founded upon an express agreement, but was only that implied by law from the privity of estate between the parties, the assignment of the lease and surrender of possession to the assignees, with the assent of the ■plaintiff, to be implied from its acceptance of rent from tbe new tenant, extinguished the privity of estate between the parties, and the consequent implied liability of the defendants to pay rent.

The judgments of both courts below must, therefore, be .affirmed.

Judgment accordingly.  