
    James B. Murray v. Delia Shave.
    In March, 1851, the plaintiff leased to the defendant a house in-the city of New York, for the term of one year from the 1st of May following, at a rent, payable quarterly, of $150. In April, the defendant being desirous to give up her lease, made known her wishes to the plaintiff, who then entered into a new agreement, in writing, with a Mrs. K., by which the latter assumed the lease, bound herself to perform all its covenants, and to pay the rent reserved monthly in advance. Mrs. IC. entered into possession, under this agreement, and paid the accruing rent to the plaintiff, with the exception of the last . quarter’s.
    (Before Duer & Campbell, J.J.)
    April 27;
    April 28, 1853.
    To yecover the balance, the plaintiff brought this action, claiming that the defendant was liable for its payment under the original lease.
    
      Sold, that the -new agreement between the plaintiff and Mrs. K. operated in law to discharge the defendant from the covenants of her lease, and was a virtual ■ acceptance by him of the surrender which she then offered to make.
    This was an action to recover a balance of the annual rent of premises in the city of New York, alleged to be in arrear.
    The complaint set forth that the defendant, on or about the 3d day of March, 1851, by an agreement in writing, hired and took from the plaintiff the dwelling-house, known as No. 85 St. Mark’s Place, for the term of one year, at the yearly rent of $750, payable quarterly in advance, together with the water tax, and averred that the defendant had not paid the said rent in full, but that there was still due and owing to the plaintiff on account thereof the sum of $282, for which sum, with interest from the 1st of May, 1852, judgment was demanded.
    The defence set up in the-answer was, that, on or about the 20th of April, 1851, an agreement was made between the plaintiff and one Mary Kent, with the assent of the defendant, whereby the said Mary Kent was substituted in the place and stead of the defendant, as tenant to the plaintiff of the premises mentioned in the complaint, for the same term and at the same rent; whereby the agreement in the complaint mentioned, in respect to the liability of the defendant for the rent therein reserved, was wholly annulled.
    The action was tried before Mr. Chief Justice Oakley and a jury, on the 6th day of December, 1852.
    The execution of the agreement being admitted in the answer, the plaintiff produced and read the same in evidence. The agreement is in the words following :—
    
      “ This is to certify, that I have hired and taken from James B. Murray, the dwelling-house known as Ho. 85 St. Mark’s Place, corner of First Avenue, for the sole use and purpose of a private dwelling-house, for the term of one year, to commence the first day of May, one thousand eight hundred and fifty-one, at the yearly rent of seven hundred and fifty dollars ($750), payable quarterly in advance, together with the water-tax; and I engage not to let nor under-let the said premises, in whole nor in part, nor occupy the same for any business other than above stated, or deemed extra-hazardous on account of fire, without the written consent of James B. Murray, his heirs and assigns, first had and obtained, under penalty, at the option of said Murray, his heirs and assigns, of forfeiture and damages in the amount of at least one year’s rent.
    “ And I do hereby promise to make punctual payment of the rent, in manner aforesaid, and quit and surrender the premises at the expiration of the said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted. And if the rent reserved herein is not paid according to the conditions above named, or if the other, agreements, or any of them, are not fulfilled, I hereby agree that said James B. Murray, his heirs or assigns, may, at his or their option, re-enter upon and re-possess said premises and annul this lease.
    “ Given under my hand and seal, this third day of March, 1851.
    “ Delia Shave.”
    • (Witness,) “ Johh B. Mubbay.”
    The plaintiff thereupon rested his case.
    The defendant’s counsel then called as a witness, Mrs. Mary Ann Kent, who was sworn, and testified as follows : I occupied the premises in question, Ho". 85 St. Mark’s Place, from the 1st day of May, 1851, to the 1st day of May, 1852. I hired them from Mr. John B. Murray. (Plaintiff’s counsel admits said Murray was the agent of the plaintiff.) I hired the premises prior to the 1st of May. At the time I hired them I knew Mrs. Shave had previously taken them. I told Mr. Murray if Mrs. Shave gave up the premises I would take them, and after that I did take them, and at the time I took them, I paid a portion of the rent in advance. There was an agreement in writing on one side, between Hr. Hurray and me; that is, I gave him one, and he promised me one, but he never gave it to me.
    The defendant’s counsel here asks for the production of the agreement testified to by the witness, and it is produced, endorsed on the agreement of letting to the defendant. It is as follows:—
    “In consideration of one dollar to me this day paid by James B. Hurray, the receipt whereof I hereby acknowledge, I hereby assume the within lease, and agree to pay the rent of the said house monthly in advance, viz. the sum of sixty-two dollars fifty cents, on the first day of each and every month, and the water rent when due. And I further agree to perform all and every of the covenants therein contained, with the sole change of paying the rent monthly in advance, instead of quarterly in advance.
    “ Mary A. Kent.”
    Dated New York, April 21,1851.
    (Witness,)--.
    Being cross-examined, the witness says: I took three or four receipts from Hr. John B. Hurray, and two from his younger brother. Hr. Hurray afterwards called upon me and took all those receipts, and gave me a general receipt in lien of the others. Being asked to produce that receipt, she says: It is at my home, at New Rochelle.
    Being further directly examined, she says : When these receipts were taken, Hr. Hurray said he would give me a general receipt in full.
    Being further cross-examined, she says: Those receipts were signed by Hr. Hurray on account of rent received from me.
    The defendant’s counsel here rested the case on his part, and ■ insisted to the court that the agreement between the plaintiff and the witness, Hrs. Kent, was a virtual surrender of the agreement between the plaintiff and the defendant, and that the complaint should be dismissed. The court said that it would reserve that question, and refused to dismiss the complaint. Whereupon the counsel for the defendant excepted- -
    
      The plaintiff’s counsel then called as a witness,
    
      John B. Murray, who was sworn, and testified as follows: I am the agent of the plaintiff, and in that capacity rented the premises in question to the defendant, on the 3d of March, 1851. On the 24th of April Dr. Banners called on me, and said Mrs. Kent wished to see me. I saw Mrs. Kent, made the agreement with her, and she paid me part of the rent. I gave her a receipt. The receipt is produced by witness, and is as follows:—
    “ New York, April 24, 1851.
    “ Received from Mrs. Mary Ann Kent, sixty-two fvV dollars, for one month’s rent in advance, from 1st May next, of house No. 85 St. Mark’s Place, under lease of said house to Mrs. Delia Shave, dated March 3d, 1851, which lease Mrs. Kent has assumed to pay hereafter (at the request of Mrs. Shave), monthly, in advance. And all future receipts in her name will be to the same effect, and without prejudice to the terms of the lease.
    “ James B. Murray,
    1 “ $62tW. “ Per John B. Mtjbbay.”
    My understanding of the matter was, that Mrs. Kent was to be paymaster for the defendant. All the subsequent receipts were made in Mrs. Shave’s name. >
    Being cross-examined, the witness said: Dr. Banners told me that Mrs. Kent wished to take the house instead of the defendant. I told him that I could not change the tenant. I told Mrs. Shave that I would not make any change. I had no conversatiofi with Dr. Banners on the subject of his becoming security for Mrs. Kent, as I recollect. Dr. Banners said that Mrs. Kent' wanted to take the premises. I was satisfied that the defendant was responsible. When Mrs. Kent paid me she wanted the receipts in her name alone, without reference to Mrs. Shave. I refused to give her any other. I don’t know that she expressed any objection except to the first.
    The plaintiff’s counsel here rested the case on his part.
    The defendant’s counsel then called as a witness, Dr. George M. Hammers, who was sworn, and testified as follows: I called on Mr. Murray, the last witness, at the request of Mrs. Kent, prior to Hay, 1851, and asked him to transfer the lease of the premises to Mrs. Kent. He said that belonged to his father to do, and he would see him. I told him Mrs. Shave was sick, and wanted to give up the agreement. He asked me if Mrs. Kent was responsible, and if I would go security for her. I told him she had not asked me.
    The defendant’s counsel recalled
    Mrs. Kent, who further testified, as follows: I objected to the form of all the receipts given me, and sent one back by the boy Mr. Murray sent with it.
    The testimony here closed, and the defendant’s counsel again insisted to the court, that the agreement between the plaintiff and Mrs. Kent was a conclusive bar to the action. The court said it would reserve that question, and instructed the jury, that if they found, aside from the agreement, that there was an actual agreement to substitute Mrs. Kent, as tenant, in lieu of the defendant, and she took possession under such an agreement, then they should find their verdict for the defendant, otherwise for the plaintiff.
    The jury found a verdict for the plaintiff, subject to the opinion of the court at general term, as to the legal effect of the written agreement in- evidence, with the right to order a judgment for the defendant.
    
      J. L. Mason argued for the plaintiff
    upon the following points.
    I. The jury have found that there was no actual agreement to substitute Mrs. Kent in lieu of the defendant as tenant, or, in other words, that it was the intention of the parties, that, notwithstanding the covenant of Mrs. Kent, the original contract with Mrs. Shave should continue in full .force.
    II. If then the original agreement is superseded, and Mrs. Shave discharged, it is because a construction is put upon the writing executed by Mrs. Kent directly contrary to the intention of the parties.
    III. In giving a construction to the instrument, the court will confine itself to its terms, and see what they necessarily import—and will not use it as evidence from which a surrender may be inferred. The question presented is, not what may be inferred to have occurred previous to the execution of the instrument, and to have given rise to its execution, but, what is the legal effect of the language employed?
    IY. Such a construction will not be given to it as will’defeat the actual intention of the parties, unless any other construction is impossible, consistently with its plain and obvious meaning.
    Y. The instrument executed by Mrs. Kent is not, in terms, a cancellation or surrender of the original contract, or a discharge of Mrs. Shave from liability, or a letting of the premises to Mrs. Kent, or a substitution of her in place of Mrs. Shave; nor is it in terms any one of these, but simply a promise by Mrs. Kent, endorsed on the original contract, to pay the rent reserved in that contract, which is thereby recognised as a subsisting and uncancelled instrument.
    YI. If then this instrument has the effect of releasing Mrs. Shave, it must be because the simple fact of taking from Mrs. Kent, who enters into possession of the premises, an obligation to pay the rent, is, of itself,, a surrender of the original tenancy.
    YII. But it is well .settled that acceptance by a lessor of rents, from an assignee of the ..lessee, does not discharge the original liability of the lessee for any rent remaining unpaid; he is still liable to be sued in covenant. (Jackson v. Brownson, 7 J. R. 227; Thursly v. Plant, 1 Saund. 237; Archbold, Landl. & Ten., p. 35.)
    VIII. It is impossible then that the mere promise or engagement, by a person entering into the possession of the premises, to pay the rent, can be construed to be a surrender of the original contract. The natural inference, from the fact of the instrument being endorsed on the original contract, is, that it was intended to be continued, and that the promise by Mrs. Kent was in consideration of the consent to the assignment.. The terms of the instrument are more in accordance with the idea of an assignment by Mrs. Shave to Mrs. Kent, than of a surrender to the plaintiff.
    
      R. Goodman for the defendant contra—
    I. The agreement of letting to Mrs. Kent implies a release or surrender of the agreement with the‘defendant. Tt is a surrender by operation of law. This implication or presumption of law arises from the face and tenor of the instruments, and no other presumption can be supported therefrom. (2 Roll. Abr. 495, L. 41; Jackson v. Gardner, 8 Johns. 394; Stone v. Whiting, 2 Stark. 233; Sparrow v. Hawkes, 2 Esp. N. P. C. 505; Bailey v. Delaplaine, 1 Sandford R. 5.)
    II. Coupling the acts of the parties with the agreements, the presumption cannot be rebutted. (Thomas v. Cook, 2 B. & A. 119; Smith v. Niver, 2 Barbour S. C. R. 180; Watts v. Atcheson, 3 Bing. 462; Smith v. Mapleback, 1 T. R. 441.)
    TIT. The terms of the written instruments could not be varied by parol evidence. The presumption of law is raised from the instruments themselves, and the acts of the parties.
    IY. The evidence of the plaintiff’s agent, even if admissible, is merely as “ to his understanding of the matter,” and this understanding is in direct conflict with the written instruments, the acts of the parties, and the understanding of all the other parties and witnesses. There is no evidence that the defendant assented to the arrangement. This assent was dependent upon her release.
    Y. The verdict rendered in the action should be set aside, and judgment given for the defendant, dismissing the complaint with costs.
   By the Court. Duer, J.

It is quite certain that Mrs. Kent did not enter into the possession of the demised premises either as the assignee or sub-tenant of the defendant, yet, unless she held the possession in one or other of these characters, there is no principle of law or equity upon which the defendant can be made responsible for her acts or default. The entry of Mrs. Kent was not under the original lease, and there was no contract between her and the defendant, under which such an entry could be justified. Her entry was, as the immediate tenant of the plaintiff, under a new agreement, varying materially from the original lease, which, in the exercise of his own discretion, he chose to make with her. To this agreement the defendant was in no sense a party, nor does it appear that she had any knowledge of its terms or existence. She was willing that Mrs. Kent should be substituted in her place as the lessee, but the admission of Mrs. Kent into the possession was not her act, nor under any title obtained from her, but was solely the act of the plaintiff, under a title derived immediately from him.

Upon the question of law, therefore, reserved upon the trial, our opinion is clearly in favor of the defendant. We do not at all doubt that the new agreement between the plaintiff and Mrs. Kent operated, in law, to discharge the defendant wholly from the covenants of the lease, and was virtually an acceptance by him of the surrender, which, by offering Mrs. Kent as her substitute, she requested to make. .We attach no importance to the terms of the receipts for rent which the plaintiff gave to Mrs. Kent; they are evidence only that he wished to do what the law would not permit, bind Mrs. Kent by a new lease, and at the same time hold the defendant liable upon the old. He could not by his own act, without the assent of the defendant, alter the nature of his agreement with Mrs. Kent, nor vary its legal effect. The defendant had a right to determine for herself whether she would be responsible for the performance by Mrs. Kent of the covenants of the lease, and the only proper evidence that she meant to be thus responsible was, an assignment of the lease or a letting of the premises to. Mrs. Kent, as her own tenant. As the plaintiff, without this evidence, chose to admit Mrs. Kent into the possession, he could not release himself, nor can we relieve him, from the legal consequences of his act..

We think that the equity of this case corresponds with its law. It is clear from the testimony of Dr. Hanners, that the defendant meant to give up the lease entirely, and requested to be discharged by the substitution of Mrs. Kent as the immediate tenant. These facts were knpwn to the agent of the plaintiff, and if, with this knowledge, he meant to retain the liability óf the defendant upon the covenants in the lease, he was bound in good faith to give her immediate notice that such was his intention. In the absence of this notice she had the right to believe that Mrs. Kent was let into the possession in compliance with her request, and in conformity to its terms, and to give a different construction now to the acts and conduct of the parties, would be to give our sanction to what a court of equity would hold to be a fraud. We do not think that the rights of the plaintiff are at all affected by the finding, of the jury, which we construe as only meaning that there was no agreement between the plaintiff and defendant for the substitution as tenant of Mrs. Kent, independent of that which the law would infer from his agreement with the latter.

The verdict for the plaintiff is set aside, and a verdict and judgment thereon must be entered for the defendant with costs.  