
    David Austin vs. Theodore S. Harris & another.
    If a lease contains a covenant not to underlet or permit any other person to occupy without the lessor’s assent, and that any breach of the lessee’s covenants shall terminate his estate therein; an agreement of the lessee to assign the demised premises for the residue of the term is not complied with by an assignment duly executed by him, but not assented to by his lessor.
    Action of contract to recover the amount agreed to be paid for an assignment of a lease from Samuel Sheafe to the plaintiff. . Answer, that the plaintiff did not obtain his lessor’s assent in writing to the assignment, although the defendant requested him to do so, and offered to pay him said amount if he would. The facts are stated in the opinion.
    
      H. C. Hutchins, for the plaintiff.
    
      J. W. Rollins, for the defendants.
   Thomas, J.

This is, we think, a plain case. The plaintiff, for the consideration which he seeks to recover in this action, was to assign to the defendants, on the 1st of February 1856, the lease of the store numbered 219 on Washington Street, and to give up and surrender to the defendants on that day “ all that part of the said building occupied by him the said Austin and demised to him by said lease, for the remainder of the term of said lease, to wit, until the first day of March 1856.” Here is clearly, if not more, an agreement to give to the defendants the legal possession of the store, and to permit them to use and occupy the premises demised from the 1st of February to the 1st of March.

In the lease under which the plaintiff held the premises he covenanted, among other things, “ that he would not lease, nor underlet, nor permit any other person or persons to occupy the same, except with the approbation in writing of the lessor or those having his estate in the premises.” It is one of the express conditions of the lease, and the term granted is subject to the condition, that “ if any of the covenants to be observed on the part of the lessee or those holding under him shall be broken, the lessor or those having his estate in the premises, whilst such neglect or default continues, may without further notice or demand enter upon the premises, or any part thereof in the name of the whole, and repossess the same as of his former estate, and thereby absolutely determine the estate of the lessee therein.” The plaintiff had no approbation, written or oral, to assign he lease or to permit the defendants to occupy the premises.

The assignment tendered to the defendants would have trans ferred to them no use of the premises for the remainder of the term. If it operated even as a permission to the defendants to occupy, it would for that very reason have operated as a determination of the lessor’s estate. The defendants had the right to a legal surrender of the premises for the remainder of the term, and not merely to a transfer formal but valueless.

Judgment for the defendants  