92 Cal. 542, 14195, Farnum v. Hefner

Docket Nº:14195
Citation:92 Cal. 542, 28 P. 602
Party Name:C. E. FARNUM, Appellant, v. PHILIP HEFNER, Respondent
Attorney:Carter P. Pomeroy, for Appellant. H. V. Reardan, for Respondent.
Judge Panel:Foote, C. Belcher, C., and Fitzgerald, C., concurred.
Case Date:December 30, 1891
Court:Supreme Court of California
 
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Page 542

92 Cal. 542

28 P. 602

C. E. FARNUM, Appellant,

v.

PHILIP HEFNER, Respondent

No. 14195

Supreme Court of California

December 30, 1891

Department One

Appeal from a judgment of the Superior Court of Butte County, and from an order denying a new trial.

The Court. -- For the reasons given in the foregoing opinion, the judgment and order are affirmed.

SYLLABUS

The facts are stated in the opinion, and in the decisions rendered upon the former appeal, reported in 79 Cal. 575.

Carter P. Pomeroy, for Appellant.

H. V. Reardan, for Respondent.

Foote, C. Belcher, C., and Fitzgerald, C., concurred.

OPINION

Page 543

This cause has been here before (79 Cal. 575), where the facts pertaining to it are fully stated.

It was contended on that appeal that Hefner, the defendant, was entitled to certain wheat, which had been grown upon Farnum's land by a tenant named Butler, by virtue of an execution sale of the interest of Butler to Hefner in the leasehold. And in support of this view the judgment roll in the action of Hefner against Butler was offered in evidence by Hefner, and refused by the court. The court here held that this should have been admitted because the transfer of the leasehold interest of Butler by the execution sale was an involuntary assignment of the lease which was not specified in the lease as a forfeiture thereof, the opinion on the point reading thus: --

" The covenant in the lease is the ordinary kind which applies, it seems to us, to a voluntary, and not an involuntary, assignment of the lease. It is firmly established by authority that under such a covenant an involuntary assignment by sale under execution -- bankruptcy and the like -- is not a violation of the covenant, and does not work a forfeiture." (79 Cal. 580; 12 Am. St. Rep. 174, and authorities cited.)

The effect of the decision then was to reverse the judgment which Farnum had obtained against Hefner for damages for conversion of the wheat raised on the leased premises by Butler, and claimed by Farnum, as also the order denying Hefner a new trial.

It is now contended by Farnum, the appellant, that the lease was forfeited by a written assignment to one Gibbs, by Butler, before the judgment of Hefner against Butler was obtained. And

[28 P. 603]this seems to be the only

Page 544

point made as...

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