Brothers "will not assign nor transfer this lease." By the disjunctive "or" they are further restricted from subletting “said premises, or any part thereof,” which is not claimed to have been violated and which is in its essentials a distinct independent restriction, which plaintiff admits is not involved here. By the strict construction applied in case of restrictions against demise, a prohibition against assigning a lease does not prohibit assigning any interest therein, which is all that is claimed here. In Roosevelt v. Hopkins, supra, the lessees were partners under the firm name of Hopkins & Crow. Their lease provided they should not "demise, sell, underlet or assign over said premises to any person or persons whatsoever." Crow retired from the firm and the business was afterwards conducted by a new firm styled Hopkins & Bros. which sublet a part of the premises. The court there said:

"They neither demised, sold, underlet nor assigned the entire property embraced in the lease. They were not prohibited from subletting portions of the premises; and the exercise of this right, therefore, gave no cause of action to plaintiff."

*

*

"An assignment of a lease is the transfer of a tenant's whole estate therein to some third person: * If the grantor conveys a shorter term or less estate than he himself had in the premises, or if a lessee for life grants a term of years, provided, the life should continue so long, this is not an assignment of the freehold, but only a grant of a term; and will, in neither case, amount to more than an under-lease." 2 Taylor on Landlord and Tenant, § 426.

"By the assignment the tenant parts with his entire interest and a new tenant takes his place with whom the landlord must deal as with his predecessor." 2 Underhill on Landlord and Tenant, p. 1052.

No such situation presented itself here. If Ische Brothers parted with title to any interest in the lease, which is but an inference, they did not part with

214-Mich.-13.

their entire interest in the leasehold estate which they held in the premises, nor in the business conducted there. They yet were entitled to possession as tenants and bound to attorn to the landlord as before. No difference in the authorized kind of business, manner of conducting it or care of the premises is shown or claimed. The stipulated facts do not sustain plaintiff's technical claim of forfeiture for violating the covenant of the lease forbidding its assignment when measured by the rule of strict construction applicable to breaches of conditions working forfeitures of leasehold estates.

The judgment is affirmed.

MOORE, WIEST, FELLOWS, STONE, CLARK, BIRD, and SHARPE, JJ., concurred.

SPECIFIC

BRADLEY v. MAY.

PERFORMANCE-DISMISSAL-FRAUDS, STATUTE OF ADEQUATE REMEDY AT LAW.

Defendant's motion in the nature of a demurrer to dismiss plaintiff's bill for the specific performance of an oral contract to pay them a commission for the leasing of certain real estate should have been granted since, if the statute of frauds (3 Comp. Laws 1915, § 11981, subd. 5) requiring agreements to pay a commission for the sale of real estate to be in writing has no application, plaintiffs have an adequate remedy at law on their claim of full and precise performance on their part for which an agreed money compensation was to be paid.

Appeal from Genesee; Black (Edward D.), J. Submitted May 3, 1921. (Docket No. 131.) Decided June 6, 1921.

Bill by George D. Bradley and others against Frederick E. May and others for the specific performance of a contract. From an order denying a motion to dismiss, defendants May appeal. Reversed, and bill dismissed.

Withey & Freeman, for plaintiffs.

Parker & Wilber, for defendants.

STEERE, C. J. Plaintiffs by a bill in chancery seek to compel specific performance of an alleged oral agreement by defendants May to pay them a commission of 3 per cent. of the total income received from a lease they had negotiated as brokers for defendants. Defendants made a motion in the nature of a demurrer to dismiss said bill, urging as a principal ground that the alleged contract was void under the statute of frauds, because not in writing as required by 3 Comp. Laws 1915, § 11981, subd. 5, also no question for equity jurisdiction is involved and plaintiffs have a complete and adequate remedy at law, if any. The trial court overruled said motion and defendants may appeal therefrom, having obtained permission as provided by statute.

The bill of complaint demurred to alleges that plaintiff George D. Bradley was engaged in the business of buying, selling, leasing, etc., real estate in the city of Flint, having associated with him as parties in interest plaintiffs Ellis Bradley and William L. Christner who were duly licensed to pursue the calling of real estate agents. The substance of the alleged oral contract for which specific per

formance is asked is thus stated in paragraph 3 of the bill:

"That on or about said 19th day of January, the said plaintiffs, or some of them, learned that the defendants were desirous of selling or leasing certain real estate in said city of Flint, of which said defendants, Frederick E. and Minnie E. May, were in control, and which they assumed to own, and so far as plaintiffs know, are informed and believe, did and do own, viz., lot 16, block 18 of Oak Park subdivision of the city of Flint, according to the recorded plat thereof, which property was suitable for hotel and restaurant purposes; whereupon, the said plaintiffs, William L. Christner and Ellis Bradley, interviewed said defendant Frederick E. May, and ascertained that said defendants, Frederick E. and Minnie E. May, were desirous of either selling or renting said real estate; whereupon it was then and there agreed between said plaintiffs and said Frederick E. May that the plaintiffs might undertake the selling or leasing of said premises, and that if they secured a sale thereof, at $50,000, the plaintiffs should have 3 per cent. for their services, and if they secured a lease on said property for $500 per month, and sufficiently long to aggregate $60,000, that they should have 3 per cent. on that sum; that said defendants, Frederick E. and Minnie E. May, through said Frederick E. May, specifically agreed that they would pay said plaintiffs 3 per cent. if they procured a sale at $50,000, or 3 per cent. on $60,000 if they procured a lease of said property at $500 per month, and long enough so the aggregate rent would be $60,000."

The bill further alleges that in performance of said agreement plaintiffs found a lessee of the premises for a term of 10 years at a monthly rental of $500 per month, receiving thereon a payment down of $500, and afterwards had a written lease drawn up embodying the terms of the agreement which was signed by the parties and the deal consummated by putting the lessees in possession; that defendant Isadore Himmelhoch by subsequent assign

ment became the lessee of said premises, is now in occupation of the same, paying the rents to defendants May according to the terms of the lease; that the first month's rent of $500 was kept by plaintiffs as part of their commission, $25 of which was paid by them to an attorney for drawing up the papers, but defendants May have since failed to perform on their part and refuse to pay any further commission to plaintiffs for their services in that connection. The bill asks in customary phraseology specific performance of said agreement to pay the 3 per cent. commission on the total income from said lease, and for a temporary injunction impounding the rent as paid.

Since the amendment of our statute of frauds in 1913, requiring that "every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate" must be in writing to be enforceable (3 Comp. Laws 1915, § 11981, subd. 5), its construction and application have several times been before this court. Paul v. Graham, 193 Mich. 447; Slocum v. Smith, 195 Mich. 281; Cochran v. Staman, 201 Mich. 630; Greenberg v. Sakwinski, 211 Mich. 498; Webert v. Roberts, 211 Mich. 692; Purdy v. Law, 212 Mich. 275.

In avoidance of the statute it is contended for plaintiffs that the contract relied upon by them is not an agreement for the sale of land or any interest therein, neither is it an agreement "for the leasing," but only "an agreement to procure a lease to be made in the future and that was done," for which reasons counsel state in their brief "it is axiomatic that we could recover at law."

It is also urged in support of this bill that the two remedies are concurrent under the facts in this case; that the equity proceeding affords a complete and immediate remedy in one suit, which is not available