Foucar v. Holberg

• Decision Date: 06 January 1908
• Citation: 107 S.W. 172,85 Ark. 59
• Parties: FOUCAR v. HOLBERG
• Court: Arkansas Supreme Court

107 S.W. 172

85 Ark. 59

FOUCAR v. HOLBERG

Supreme Court of Arkansas

January 6, 1908

Appeal from Sebastian Circuit Court; Daniel Hon, Judge; reversed.

Reversed and remanded.

Charles E. Warner, for appellant.

1. Under the facts developed in evidence the appellee was clearly an assignee of the term, and not a sub-tenant. 67 Mass. 329; 9 Pick. 53; 129 Ill. 318; 104 Ill. 160; 166 Ill 361; 123 Pa.St. 576; 2 Dana, 294; 67 Ind. 513; 120 Mich. 48; 52 Miss. 155; 50 Mo. 319. Possession alone is prima facie sufficient, and to escape liability as assignee the defendant must prove that he held as sub-tenant. 2 Wend. 517; 139 Pa.St. 344; 19 Neb. 540; 2 N.H. 387; 25 Mo.App. 359; 8 Id. 223. See also Jones on Landlord and Tenant § § 445, 446; 64 Md. 501.

2. The statute creates a direct liability on the part of the occupant of real estate to the owner. Kirby's Digest §§ 4698, 4700, 5035.

Winchester & Martin, for appellee.

1. Appellee was a sub-tenant of Smith's, and not an assignee of the term, and there was no privity of contract nor of estate between appellant and appellee. Jones on Landlord and Tenant, § 659, and authorities cited in notes 109, 110, 111. Where the demised premises are let for a part only of the unexpired term, the new tenant is only a sub-lessee, and is not a tenant to the landlord. Id. § 445. A sub-lessee is one who leases all or a part of rented premises from the original lessee for a term less than that held by the latter, and in that case the lessee retains a reversionary interest. Id. § 446; 128 Mass. 245. "To constitute an assignment of a leasehold estate, the assignee must take precisely the same estate in the whole or in a part of the leased premises which his assignor had therein. He must not only take the whole of the unexpired term, but he must take the whole estate." 131 Mass. 161.

2. Sections of the statute cited by appellant as changing the common-law rule have no application in this case. Until the written contract of lease between appellant and Smith was cancelled, no implied contract by appellee to pay rent to appellant would arise. Jones on Landlord and Tenant, § 659.

OPINION

McCULLOCH, J.

Mrs. Ida L. Foucar, the appellant, owned a certain store house in the city of Fort Smith, and leased it to one Smith for a year from January 1, 1905, at the rental sum of $ 840 per annum, payable in equal monthly installments. She instituted this action against the appellee, Holberg, to recover $ 140 for the rent due for the months of November and December, 1905, alleging in her complaint that Smith had assigned the lease contract to Holberg, and that the latter had occupied the house during the months named, but had refused to pay the rent.

It appears from the evidence adduced at the trial that in January, 1905, when the lease contract was entered into between Mrs. Foucar and Smith, the latter was then occupying the store house under a prior contract, and that shortly after the execution of the contract he placed appellee, Holberg, in possession of the house. Whether the transaction amounted technically to an assignment of the contract to Holberg, or whether it was a sub-letting of the premises, we need not consider. Holberg continued in possession, and paid the rent monthly except for the months named above, and on January 1, 1906, entered into a new contract in writing with Mrs. Foucar for the lease of the house.

The only material testimony introduced at the trial was that of Smith who made the following statement concerning Holberg's occupancy of the house: "Before the first of February I let the defendant have the store room. We talked about two of the provisions in the lease that I remember, the one about keeping a retail bar for sale of liquor to be drunk on premises and one as to the rental price. I let defendant have the whole store room; did not keep any part of it for myself, he expressly agreeing that he would pay rental money. He just took my place. I made no written assignment of the lease to Holberg; do not remember that I ever showed him the lease until about the first of August, 1905, and did not notify Mrs. Foucar that I had let Holberg have the house. Until about August I was in business in the adjoining store room, and when collector from the bank came for the rent money as it was due, defendant would give him a check for the rent payable to me, and the collector would bring it to me, and I would indorse it and give it back to...