An action for rent of premises for unexpired term of a lease
brought by the lessor against the stockholders' agent to whom the
comptroller has released the assets of a national bank is a suit to
wind up the affairs of the bank, of which the Circuit Court of the
United States has jurisdiction.
Under a provision in a lease that, in case of reentry for breach
of covenant, the lessors may relet the premises at the risk of
lessee, who shall remain for the residue of the term responsible
for the rent reserved and shall be credited with such amounts only
as shall by the lessors be actually realized, as the same has been
construed by the highest court of Massachusetts, the lessor has not
the absolute discretion, after entry, to relet or not to relet the
premises, but it is his duty to prevent unnecessary loss or
diminution of rent, and, in the absence of a reasonable effort to
relet the premises, cannot recover.
125 F. 370 affirmed.
The facts are stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
This is an action on contract brought in the Circuit Court of
the United States for the District of Massachusetts for rent
alleged to be due under the terms of a lease made by Henry Parkman
and others to the Broadway National Bank.
The original lessors sold the land and building leased to the
International Trust Company, plaintiff in error. Defendant
Page 203 U. S. 365
in error is agent of the shareholders of the Broadway National
Bank.
The premises leased were the first floor of the building and the
basement under the same, "to be used as the business offices of
said corporation, and for no other purpose." The lease contained a
provision for reentry upon breach of any covenant.
"And thereupon, the lessors may, at their discretion, relet the
premises at the risk of the lessee, who shall remain for the
residue of said term responsible for the rent herein reserved, and
shall be credited with such amounts only as shall be by the lessors
actually realized."
On December 16, 1899, the bank became insolvent, and the
Comptroller of the Currency appointed a receiver. On February 15,
1900, the Comptroller released the estate of the bank to defendant
in error as the stockholders' agent. Between December 16, 1899, and
January 5, 1900, the trust company entered upon the premises and
repossessed itself of the same as of its former estate. The
receiver occupied the premises for a while, but it was stipulated
that such occupation was not to affect the rights of the parties.
Defendant in error occupied the premises until May 19, 1900. He
contended in defense of the action that, upon the termination of
the lease it was the duty of the trust company to use all
reasonable effort to relet the premises so as to minimize the
damages, and that the company had not done so. And further that
suitable and responsible parties were willing at various times to
hire the premises at a rent as great or greater than the rent
reserved in the lease.
At the first trial of the case, the circuit court took the
opposite of defendant in error's contention, and held that, by
force of the lease, the trust company did not assume any risk, and
was only required to use its discretion
"with some degree of reasonableness and with some degree of
justice, and have some regard to the rights of the position of the
other parties concerned."
The court further held that the evidence did not show that the
company had abused its discretion, and
Page 203 U. S. 366
directed a verdict for it, less certain payments made by the
occupant of the basement, formerly the bank's tenant. This was
reversed by the circuit court of appeals. 125 F. 371. The latter
court held that a lessor had the right to reenter, and might
exercise his discretion to relet the premises at the risk of the
lessee. The lessor, it was said, need not go through the form of
reletting, but an honest and reasonable attempt to relet should be
made, and whether so made was a question for the jury.
Upon the second trial of the case in the circuit court, the
trust company expressed its contentions in requests for
instructions to the jury as follows: (1) that it was entitled to
rent the premises and relet them at the risk of the bank; (2) that
there was no obligation upon it to notify the bank of its election
so to do, or to relet the premises or attempt to relet them. The
court declined to give the instructions, but instructed the jury in
accordance with the principle expressed by the circuit court of
appeals. The jury returned a verdict for defendant in error, upon
which judgment was duly entered. It was affirmed by the circuit
court of appeals.
(1) It is objected by defendant in error that the circuit court
had no jurisdiction of this action. We think otherwise. The action
is clearly one to wind up the affairs of the bank.
In re
Chetwood, 165 U. S. 443,
165 U. S. 459;
Guarantee Co. v. Hanway, 104 F. 369.
(2) The fact that the trust company did not make a reasonable
effort to relet the premises was settled by the verdict of the jury
against it, and the case is reduced to the simple question whether
the company can recover by virtue of the provisions of the lease
without any attempt whatsoever to relet the premises.
It is said in argument that the provision in controversy has
been found in the usual form of lease in Massachusetts for a
generation, and yet its meaning, as now brought in dispute, has not
come up for or received explicit decision. To this absence of
contention and decision, both parties refer with
Page 203 U. S. 367
equal confidence to establish that their respective
constructions have been so indisputable as never to have been
questioned. However, there are some indications of a judgment
between the two constructions in the case of
Edmands v. Rust
& Richardson Drug Co., 191 Mass. 123, which may be turned
to in passing on a question so essentially local.
The lease passed on contained a provision for an entry by the
lessors to terminate the lease for the breach of covenants,
followed by this language: "But the lessee covenants to be
responsible for any loss or diminution of rent sustained by the
lessors in consequence till the end of the lease." The defendant in
the case requested instructions, expressing it to be the duty of
the lessor to accept any tenant that was satisfactory financially
to defendant. His instructions were refused, and the court
instructed the jury, among other things, as follows:
"In general, the effort must be that which a reasonable
landholder would make under the circumstances. Not every proposed
tenant need be accepted, but an unreasonable refusal to accept a
suitable tenant will be deemed an abandonment of the election to
relet at the risk of the lessee."
Commenting on the instructions, the Supreme Judicial Court said
that "the jury were left to decide between the parties in a way of
which the defendant has no reason to complain."
It is manifest from this decision that the lessor, after entry,
has not the absolute discretion to relet or not to relet the
premises, but that it is his duty to "prevent unnecessary loss or
diminution of rent in consequence of the termination of the
lease."
In
Bowditch v. Raymond, 146 Mass. 109, the liability of
the lessor, under the provision of a lease such as that in
controversy, was denied against an insolvent lessee on the ground
that it was dependent upon a contingency not merely as to the
amount of liability, but as to whether it would ever attach or
arise out of the covenant. "The lessors," the court said, "in their
discretion, might not relet the premises, but resume possession of
them." This case rests on the principle
Page 203 U. S. 368
expressed by judge Lowell, speaking for the circuit court of
appeals, that, if the lessor avail himself of the covenant and
reenter, he may exercise his discretion to relet the premises at
risk of the lessee or occupy them. If he elect to relet, he must
make "an honest and reasonable attempt to relet." And this is a
reasonable and just exaction. It is the spirit as well as the
letter of the covenant, fulfilling its security without unnecessary
loss to the lessee.
Whether the bank could have made a lease to extend beyond its
charter life we need not decide.
Judgment affirmed.