Haycock v. Rand.

"That if the note was obtained by fraud, it was wholly void and could not be enforced; and if the plaintiff concealed or endeavored to conceal from the defendant the knowledge of such overcharge or substitution of an inferior article, this would be evidence tending to establish fraud in the obtaining of the note; but if the note was not obtained by the plaintiff by fraud, but was obtained fairly by him of the defendant, the defendant could not avoid it by showing that the plaintiff had, before giving up the note, made fraudulent charges against him, &c." These and the more extended instructions were, we think, sufficiently favorable for the defendant. His duty was to have objected to the charges as exhibited on the bill rendered, having the opportunity to do so, and not voluntarily to have given his promissory note for the same. If he had contested the original account thus rendered, he could successfully have resisted payment only as to those items which were overcharged, and as to those portions of the charges where inferior lumber was substituted. Why should the defendant be placed on better ground by reason of his having, after the bill was rendered, given in payment therefor his promissory note? Under the old legal doctrine, that you could not mitigate the damages by showing that the consideration had failed in part, or that the note was given for an article, in reference to the value or quality of which there had been false representations by the vendor, it would have been a more reasonable and perhaps necessary result, that if part of the consideration had failed through the fraud of the plaintiff, the plaintiff should not recover at all upon the note. But under the decisions of this court, it being competent, in all cases, for the injured party to avail himself, in reduction of damages, of any such partial failure of consideration, there seems to be no necessity or any sound principle, which requires us to hold the entire note void upon proof of a partial failure of consideration, when the note itself was not obtained by fraud.

Exceptions overruled.

Wheeler & another v. Earle.

BENJAMIN WHEELER & another vs. WILLIAM EARLE.

A condition in a lease, that if the rent shall be in arrear, or if the lessee shall neg lect or fail to perform and observe any or either of his covenants therein, the lessor may, at any time while such neglect or default continues, enter upon the premises and repossess the same as of his former estate, is applicable to a covenant, that the lessee shall not occupy the buildings, or in any manner suffer them to be occupied, for dwellings, or for any unlawful purpose. Such covenant runs with the land, and is binding upon the estate in the hands of sub-tenants of the lessee, whose use of the same for an unlawful purpose will be a breach of the covenant, and work a forfeiture.

THIS was a writ of entry, tried before Wilde, J., for the recovery of land on Fulton and Richmond streets, in Boston. The tenant held the premises as the lessee of Benjamin Wheeler, deceased; and the demandants claimed to recover the same as the devisees of the lessor, by virtue of an entry on the premises, on the 16th of October, 1848, for an alleged breach, by the defendant, of one of the covenants, contained in an indenture of lease of the premises from said Wheeler deceased to him.

The covenant in question was expressed in the following terms: "And the said Earle further covenants that he will not occupy, or in any manner suffer the buildings now on the premises, or which may hereafter be erected thereon, to be occupied, for dwelling-houses, or for any unlawful purpose whatever."

The lease also contained the following clause of reëntry, which preceded the covenant above mentioned:

"Provided always, and these presents are on condition, that if the said rent shall be in arrears, or the said lessee, or his representatives or assigns, do or shall neglect or fail to perform and observe any or either of the covenants herein contained, which on his or their part are to be performed, then, in either of said cases, the lessor, or those having his estate in the premises lawfully, may immediately, or at any time hereafter while such neglect or default continues, and without further notice or demand, enter into and upon said premises, or any part thereof in the name of the whole, and repossess the same as of his former estate, and expel the said lessee, and those

30

"That if the note was and could not be enfo endeavored to conces such overcharge or would be evidence t of the note; but if : by fraud, but was defendant could n before giving up him, &c." The we think, suffic was to have o rendered, havin to have given contested the fully have res overcharged, ferior lumber placed on be was rendere

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& another v. Earle.

ised for unlawful purposes, at the time each of covenant. The demandants point was clearly established by the evi

introduced; and, upon the tenant's address the jury on this point, it was andants and agreed to by the tenant, that rendered for the demandants, and that if introduced, which was to be reported, the 'be of opinion, that the jury would not be g a verdict against them on this point; or rt should not sustain the rulings aforesaid; should be set aside, and judgment rendered but, otherwise, judgment should be rendered

and E. D. Sohier, for the tenant.

se for reëntry does not apply. All forfeitures strued strictly. Doe v. Godwin, 4 M. & S. 265; ns, 3 B. & Ad. 299; Doe v. Marchetti, 1 B. & Ad. Platt on Leases, 319; Smythe's Land. & Ten. ies, this clause of reëntry, from its terms, applies to only, and not to negative covenants. See Doe v. → B. & Ad. 299; Dormay v. Borrodaile, 10 Beav. 335; I. G. & S. 380; Platt on Cov. 20. And the location urases shows that the condition was not intended to the negative covenants.

the buildings were used for an unlawful purpose by a nant without the knowledge of the lessee, the lessee ot be said to "suffer" such unlawful occupation, within meaning of the condition. The instruction given took the stion of knowledge away from the jury, and made it a sumption of law, and in effect converted the covenant into warranty. Such a rule would place a lessee in the absolute er of his sub-tenants.

... Blake, for the demandants.

, J. Does the clause in this lease, authorizing a ✓ the lessor, to repossess himself of the premises, apbreach of the covenant, "that the lessee will not or in any manner suffer the buildings now on the pre

Wheeler & another v. Earle.

claiming under him, and remove his effects forcibly if neces sary, without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of cove nant."

On the 16th of October, 1848, the demandants entered on the premises, and gave the defendant notice that they had done so, because he had broken the covenant above mentioned, by using the premises for unlawful purposes.

It appeared, on the trial, that the defendant did not dwell on the premises, but occupied a portion thereof, in the rear of Richmond and Fulton streets, for his own business, which was that of a dealer in wood and hay; and that he let the buildings situated on the remainder of the premises, and fronting on said streets, to certain tenants, who held and occupied the same under him. The demandants produced much evidence, that since the death of the lessor in June, 1848, these buildings had been used by the under-tenants, for the sale of spirituous liquors without license, and had also been kept by them in a disorderly manner, and at times made use of for purposes of prostitution. But, after the demandants had called a large number of witnesses to this point, the judge interfered to stop the further examination of witnesses to the same point, and called on the tenant to state his defence.

The tenant thereupon denied, that the demandants' evidence established such a use, as would constitute a breach of the covenant; and contended that if it did, the clause of reëntry did not apply to a breach of this particular covenant; but, if it did so apply, it was still incumbent on the demandants to prove, that the tenant was aware that the tenements were used for such unlawful purposes. But the presiding judge ruled, that the evidence established such a use as constituted a breach of the covenant; that the clause of reëntry gave the demandants a right to enter for a breach of the cove. nant in question; and that the tenant was presumed in law to know that the buildings were used for unlawful purposes, if they were in fact so used.

The tenant also contended, that it was incumbent upon the demandants, in order to entitle them to recover, to prove