
    John W. Knight et als. vs. Moxley Blumenburg.
    Cumberland.
    Opinion October 13, 1913.
    
      Assignment. Assumpsit. Consideration. Lease. Money Had and Received. Rent. Statute of Frauds.
    
    An action of assumpsit on an account annexed for rent under lease from Waterville 'Motor Company to plaintiffs and assigned by plaintiffs to the defendant, with an oral agreement on the part of defendant to pay said rent to said -Motor -Company, which he did not do, and .plaintiffs pai-d same. T-he defense is the Statute of Frauds.
    
      Held:
    
    That the transfer of the premises by the assignment o-f the lease was a completed transaction and -the assumption of the rent by the defendant was a material part of the consideration. The question of title or -interest in real estate was no more involved ithan if it had been a sui-t to recover the consideration- for real -estate transferred by deed, for which it is well established assumpsit will lie.
    On motion for new trial by defendant.
    Motion overruled.
    This is an action of assumpsit, upon an account annexed to the writ to recover the sum of $533.32, paid by plaintiffs for defendant at his request for rent of building on College Avenue in Waterville, for four months from May 1, 1912. The plaintiffs leased, in writing, of the Waterville Motor Company said premises for the term of three years, from September 1, 1911, at a rental of $1600 per year. On the 22d day of April, 1912, the plaintiffs transferred all their right, title and interest in said lease to the defendant, the consideration being the payment of said rent to said plaintiffs; or, as a matter of convenience, to said Waterville Motor Company. The agreement by the defendant to pay said rent was not in writing. The plea was the general issue and brief statement invoking the Statute of Frauds. \
    
    The jury rendered a verdict for the plaintiff for $533.32, and the defendant filed a general motion for a new trial.
    •The case is stated in the opinion.
    
      F. P. Pride, for plaintiffs.
    
      Henry H. Sawyer, for defendant.
    
      Sitting: Savage, C. J., Spear, Cornish, Bird, Haley, Phil-brook, JJ.
   Spear,' J.

This is an action of assumpsit in which the plaintiffs seek to recover of the defendant the sum of $533.32. The declaration contains an account for money had' and received and an omnibus count. The account annexed is as follows: “Moxley Blumenburg to J. W. Knight, A. L. Knight and Otis Trafton, Dr., for money paid by the plaintiffs for the use of said defendant, at his request, for four months’ rent from May 1st, 1912“ to September 1st, 1912, paid to Waterville Motor Company, under lease to said plaintiffs and assigned by them to said defendant, which the defendant assumed and agreed to pay, but which the defendant did not pay and the plaintiffs were obliged to pay by operation of law and by the condition of the consent to the assignment, by the lessor. $533-32.”

The case grows out of the following facts: On the 1 ith day of April, 1911, the Waterville Motor Company, a corporation, leased to J. W. Knight, A. S. Knight and Otis Trafton, the plaintiffs, the second story of a brick block to be erected by the lessor on College Avenue in the city of Waterville.

The lease was to begin October 1, 1911. April 22, 1912, was entered upon the lease an endorsement in writing by the lessor of permission to the lessees to assign the lease to Moxley Blumenburg, the defendant, but not releasing the lessees for the rent. On the same day the lessees in writing assigned to the defendant all their right, title and interest in the lease. April 23rd a supplemental agreement, with reference to certain improvements and' changes, was made between the lessor and the original lessees, and on the same day assigned in writing to the defendant. The consideration expressed in the assignment of the lease was one dollar. But the rent on the premises was at the rate of $1600 a year, which the plaintiffs contend the defendant assumed and agreed to pay to them, and for the sake of convenience, pay it directly to the Motor Company. This he omitted to do and the plaintiffs, not being released from liability, were legally obliged to pay the rent for May, June, July and August. Upon this issue the plaintiffs offered evidence to prove the alleged oral agreement on the part of the defendant to pay the rent to them by paying it directly to the lessor, as a matter of convenience. The jury found the issue in favor of the plaintiffs, which must be regarded as having established the fact of such an agreement. But the defendant, even admitting the agreement, says it was not in writing and therefore within the statute of frauds, which he has pleaded.

It is not in controversy that the plaintiffs paid the Motor Company $533.32 for four months’ rent, which the defendant agreed to pay, as found by the jury. Accordingly, the only question is, was the agreement within the statute of frauds? Clearly it was not. The transfer of the premises by the assignment of the lease was a completed transaction. The assumption of the rent by the defendant was a material part of the consideration. All that remained to be done was the payment of the rent by the defendant, as he had agreed to do. The question of title or interest in real estate was no more involved than if it had been a suit to recover the consideration for real estate transferred by a deed, for which, it is well established assumpsit will lie.

Nor upon the facts presented do we think the verdict can be disturbed. The jury saw and heard all the witnesses, and passed upon their credibility, and the value of their testimony, and must have been afforded a better opportunity to arrive at a proper conclusion, than can be afforded the court from the cold type of the record.

Motion overruled.  