Greenleaf v. Allen

127 Mass. 248, 1879 Mass. LEXIS 64

Opinion

Gray, C. J.

A promise under seal to pay rent is a covenant. The declaration is a sufficient declaration in contract in the nature of covenant, under the practice act. Gen. Sts. c. 129, § 2. The defendant is liable in this action for the breaches ■ of covenant, both before and after the death of his testator. Hovey v. Newton, 11 Pick. 421. A representation of insolvency does not prevent the prosecution of this action to judgment so an to ascertain the amount due. Gen. Sts. o. 99, § 20. Greenwood v. McGilvray, 120 Mass. 516. The instructions given were, to say the least; sufficiently favorable to the defendant. The jury, under those instructions, must have found that the plaintiffs had not, orally or in wilting, released the rent in arrear; and there was no evidence of any such representation, other than a present release, as was suggested in the defendant’s request for instructions. An assignment of the lease by the lessee could not affect the liability of the lessee or his executor upon the covenants therein. Dwight v. Mudge, 12 Gray, 23. See also Deane v. Caldwell, ante, 242. ^Exceptions overruled.