#### Martineau vs. Steele.

tenant under a lease for the term of one year and 15 days from the 15th of April, 1856, at an annual rent of $600, payable in equal portions on the 15th day of July, October, January and April, the last payment' to be made the 1st of May, 1857, assigned the-lease on-the 8d of June, 1856, but put the assignee in possession the 15th of May, 1856, taking from him at the time of the assignment a separate instrument declaring that he took the lease “ subject to the terms of the same, agreeing to' pay rent at the times specified therein.” *273*JECeld,*that this agreement bound the assignee to pay all the rent which accrued on the lease for the *erdireterm.*Dixon,C. J., dissented.

The assignee^paid the four instalments of rent which fell due 1st of July and October, 1856', and 1st of January and April, 1857, but refused to pay the in-stalment of §25 which fell due May 1, 1857 *;*and the assignor, having paid §15 of the rent to the lessor, sued the assignee and recovered judgment for $25, which was affirmed by this court, Dixon, C. J., dissenting.

It is the duty of the court to construe a written instrument which is in evidence, but if the court leaves its construction to the jury and they construe it properly, the error becomes immaterial.

APPEAL from tbe County Court of *Milwaukee*County.

This action was commenced before a justice of the peace. The plaintiff’s complaint stated that in 1856 he held a written lease from one Rycraft of certain property for the term of one year and fifteen days from the 15th of April of that year, at an annual rent of $600, to be paid in equal portions on the 15th day of July, October, January and April, the last payment to be made on the 1st of May, 1857; that on the 3d of June, 1856, he assigned the lease to the defendant, who agreed in writing to take the lease subject to its terms, and to pay the rent at the times specified therein; that the defendant had not paid the rent according to the terms of the lease, and the plaintiff was “ holden to said Rycraft for said rent,” and had been compelled to pay thereof the sum of $25. The answer alleged that the defendant, on the-1st of May, 1856, leased the property of the plaintiff forgone year from that date, and for no longer or shorter time, agreeing to pay the rent of $600, and that he had paid that amount to the lessor, Rycraft, as the same became due, and denied that the plaintiff had been compelled to pay any portion of the rent.

On the trial in the county court, the plaintiff read in evidence the lease mentioned in the complaint, and testified that the assignment to the defendant was on the back of a duplicate of the lease, which was in the defendant’s possession; and the defendant having declined, after proper notice, to produce it, the court, against the objection of the defendant, allowed the plaintiff to give oral evidence that the assignment was made on the 3d of June, 1856, and was in these words: “ For value received, I assign the within lease and all my interest therein to Chester Steele.” The plaintiff also testi*274fied that be agreed witb tbe defendant about tbe 15tb of April, 1856, to assign him tbe lease, and that be occupied tbe leased premises bimself from tbe 15tb of Ajhil to tbe 15tb of May, 1856, and that be did not give up possession of tbe premises before tbe last named day, when possession was taken by one Booth, wbom tbe defendant bad said be should put in as bis tenant. Tbe defendant bad put some things in tbe bouse about tbe 5th of May. At tbe time of tbe assignment of the lease, the following paper was executed by tbe defendant: “ Having taken an assignment of a lease from John Rycraft to Peter Martineau, I hereby take said lease subject to tbe terms of tbe same, agreeing to pay rent at tbe times specified therein. June 3d, 1856. Chester Steele.” Tbe admission of this paper was objected to and an exception taken. Rycraft, tbe lessor, testified that tbe defendant bad paid bim $600 of tbe rent reserved in tbe lease, as called for, $150 at each time, but tbe last instalment of $25 tbe defendant refused to pay; and that tbe plaintiff bad paid $15 of tbe rent due on tbe lease.

Tbe defendant being sworn as a witness, bis counsel asked bim, “’What was tbe verbal agreement between you and tbe plaintiff as to amount of rent to be paid for said premises, and tbe time when such rent was to commence ?” Tbe court sustained an objection to tbe question, and refused to allow tbe defendant to prove that it was agreed orally between bim and tbe plaintiff, at tbe time of tbe assignment, that tbe defendant was to pay $600 for tbe use of said premises, from tbe 1st of May, 1857, and no other or greater sum, and for no other or longer time. To this ruling tbe defendant excepted. The court left it to tbe jury to ascertain tbe construction to be placed upon tbe agreement of tbe defendant, and told them “ that if they construed it as meaning that tbe plaintiff should pay all tbe rent that became due on tbe lease according to its terms, and that tbe defendant took tbe assignment subject to all such terms, tbe plaintiff should recover.”

Yerdict for plaintiff, for $25; and judgment accordingly.

*Chandler*& *Hiclcox,*for appellant,

argued that tbe contract of *Steele*was to pay tbe rent to Rycraft, not to tbe plaintiff; *275but if it were a contract to pay tbe ’plaintiff, it was not declared upon, and should not have been received in evidence. At most/was a mere contract of indemnity, on which the plaintiff had no right of action, unless he was liable to By-craft for the rent, and then only for so much as he had been obliged to pay. But the assignment was recognized by By-craft, who accepted *Steele*as the tenant, and *Martineau*was thereby discharged from 'liability for the rent *(Auriol vs. Mills,*4 T. B., 94), and his subsequent payment of part of the rent was a voluntary payment of *Steele's*debt, for which he cannot recover. At all events, the plaintiff is not entitled to recover more than he has been obliged to pay, yet he has paid the lessor a portion only of the rent due, and has recovered judgment for the whole amount due. Counsel also argued that the parol proof offered to show that *Steele*was to pay the annual rent of $600 from the time only when he took possession, did -not contradict the written instrument, and was admissible; and also that the court erred in submitting to the jury the construction of 'the instrument

*Wright &*Davis, contra,

argued that the plaintiff was liable for the rent notwithstanding he had assigned the lease (Taylor’s L. &T., § 436; *Walton vs. Gronly,*14 Wend., 64), although the lessor had accepted rent from the assignee. The assignee may be sued for the rent by the lessor, or the lessor may resort to the lessee, in which case the lessee may resort to the assignee, as in this case. *Port vs.*Jackson, IT Johns., 243. The written agreement to pay the rent was made with the plaintiff and not with Bycraft, and payment of any part of the rent by the plaintiff before suit was unnecessary. 17 John., 246. The parol evidence was inadmissible. 11 Barb., 595.

November 2.

*By the*Court,

Cole, J.

My understanding of the agreement signed by the appellant is, that he was to pay all the rent which might become due upon the lease; for he says in that writing, *“*I hereby take said lease, *subject to the terms of the same, agreeing to pay rent at the times specified therein."*Now, by the terms of the lease, the rent was to be paid on the 15th days of July, October, January and April follow-*276mon^,s ren^ was Pa^ ^e ex“ of tbe lease. But tbe appellant took an assignment of tbe lease and possession of tbe demised premises before any of tbe rent became due. It is said to be a general principle of law, that an assignee takes tbe thing assigned subject to all equities to wbicb tbe original party is subject, and must therefore perform all covenants wbicb are annexed to tbe estate and run with tbe land. Tbe payment of rent is one of those covenants, and tbe assignee, by accepting possession, renders himself liable therefor, though not named. Taylor’s Landlord and Tenant, § 437; 2 Platt on Leases, p. 402 ; *Graves vs.*Porter, 11 Barb. (S. C.), 592.

In tbe present case, however, tbe assignee, to place bis liability beyond question, agreed in writing to take tbe lease subject to its conditions, and to pay tbe rent at tbe times specified in tbe same. Tbe rent for tbe entire term was thereafter to become due, and although be did not enter into possession until a month or so after tbe commencement of tbe term, yet we cannot see upon what ground tbe appellant now can claim that be should be exonerated from tbe obligation be assumed. He saw fit to take tbe estate *cum onere.*It is insisted that tbe rent should be apportioned, and that be should only *paj pro tanto*for tbe time be occupied tbe premises. But this is not bis agreement. He agreed to pay tbe rent at tbe times specified in the lease. If be did so be must necessarily pay all tbe rent for tbe full term. If be did not wish to take tbe demised premises with this burden, be could have stipulated to pay only for tbe time be might actually occupy and be in possession of them. Such a stipulation would undoubtedly have been valid and binding between him and bis assignor. But be stipulated for no apportionment of tbe rent, but on tbe contrary, agreed to pay all wbicb might become due. This is my understanding of the written agreement.

We suppose there can be no doubt that it was tbe duty of tbe county court to construe this written agreement, instead of leaving tbe question as to its proper construction to tbe jury. Tbe jury, however, placed tbe true construction upon tbe writing — tbe one wbicb tbe court should have *277placed upon it; and therefore this error becomes immaterial, since it cannot have prejudiced tbe appellant.

The judgment of the county court is affirmed.

Dixon, O. J., dissented.