Goldman v. Feder
| Citation | 84 W.Va. 600 |
| Court | West Virginia Supreme Court |
| Decision Date | 30 September 1919 |
| Parties | M. B. Goldman v. Daniel Feder & Company |
A covenant is a lease not to sub-let the premises, the terms of which are not enlarged by anything in the context, nor otherwise, accomppanied by a forfeiture and re-entry clause, is not broken by an assignment of the lease. (p. 601).
The statute, sec. 21, ch. 72, Code, providing a short and simple form of covenant against assignment, does not enlarge a covenant against sub-letting. (p. 603).
Error to Circuit Court, Kanawha County.
Action of unlawful detainer by M. B. Goldman against Daniel Feder & Co. Judgment for defendant in justice's court, judgment for plaintiff on appeal to the intermediate court, writ of error to such judgment refused by the circuit court and plaintiff brings error.
Reversed, verdict set aside, case remanded.
Morton & MoJiler, for plaintiff in error.
Morgan Owen and E. B. Dyer, for defendant in error.
poffenbarger, judge:
The judgment now under review is one for the plaintiff in an action of unlawful detainer, commenced in a justice's court, in which the defendant prevailed. On an appeal in the Intermediate Court of Kanawha County, the plaintiff prevailed, and the Circuit Court of said County refused a writ of error to the judgment.
The plaintiff having acquired the title to the premises in question, within the term prescribed by a lease thereof executed by his grantor, two years, commencing March 1, 1917, and while the lessee was in possession, on or about May 1, 1917, proceeds upon the theory of a forfeiture of the lease, occasioned by an assignment thereof by the lessee, executed, April 3, 1918. It contains a covenant not to sub-let the premises, without the written consent of the lessor, but no covenant not to assign. The claim is that the assignment constitutes a breach of the covenant against sub-letting.
The lessor was U. G. Young; the lessee Adleberg & Berman, Inc.; the purchaser of the property, M. B. Goldman; and the assignees of the lease, Daniel Feder and Company. The premises are described as the store at 25 Capitol Street, in the City of Charleston.
Failure of the plaintiff to disprove consent to the assignment, by his grantor, is relied upon by the defendant, as a defect in the case made by the evidence. Such consent given long after the grantor had parted with his title would have been unavailing. Such a covenant is for the benefit of the lessor and his assigns. The former no longer has any interest in it, wherefore he clearly has no right to give assent to an assignment of the lease or a sub-letting of the premises.
The vital question in the case is whether the assignment constituted a breach of the covenant not to sub-let, and, as to it, there is some conflict in the authorities. That it does has been distinctly held in at least two cases. Greenaway v. Adams, 12 Ves. 395; Den v. Post, 25 N. J. L. 285. But the latter was overruled in Field v. Mills, 35 N. J. L. 254. It is claimed that Upton v. Hosmer, 70 N. H. 493, asserts this doctrine, and there are some expressions in the opinion that seem to countenance it, but the covenant not to sub-let was read in connection with other provisions of the lease, which, in the opinion of the court broadened its scope. In conclusion, the court said: "The purpose of the restrictive clause appears to have been not so much to control the sale of the cottage, as to prohibit the lessee, his heirs and assigns, from making an assignment of the lease without first obtaining the consent of the lessor, his heirs and assigns.'' Hence, the covenant was construed to be one not to assign as well as one against sub-letting. In Railroad Co. v. Railroad Co. 65 N. H. 393, the covenant was not to assign, and the court held it had been broken by an assignment, not an underletting. In Berry v. Taunton, Cm Eliz. 331, the tenant devised the term, and the question was whether his act violated a covenant not to demise for more than from year to year. The court merely held that a devise was within the meaning of the word demise. In Gregson v. Harrison, 2 T. R. 425, the covenant was against both sub-letting and assignment, wherefore either constituted a breach. In Holland v. Worsley, 1 Camp. 20, the covenant was not to assign or others wise part with the premises. It obviously included both, 'as the court held. In SJiattuck v. Love joy, 74 Mass. 204, the covenant...
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Cities Service Oil Co. v. Taylor
... ... uniform, as will be seen from the annotations in 7 A. L. R ... 249, which accompany the report of the case of Goldman v ... Daniel Feder & Co., 84 W.Va. 600, 100 S.E. 400, 7 A. L ... R. 246. See, also, Wainwright v. Bankers' L. & Inv ... Co., 112 Va. 630, 72 ... ...
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Investors' Guaranty Corp. v. Thomson
...having failed to approve assignment before patent, Secretary of the Interior was without power to grant approval after patent, Coleman v. Feder, 100 S.E. 400; Carpenter v. Co., (Mass.) 61 N.E. 816; one cannot deprived of substantial right without notice, Bush v. Caldwell, 6 Wyo. 342; Dallas......
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Cities Service Oil Company v. Taylor
...not uniform, as will be seen from the annotations in 7 A.L.R. 249, which accompany the report of the case of Goldman v. Daniel Feder & Co., 84 W. Va. 600, 100 S.E. 400, 7 A.L.R. 246. See, also, Wainwright v. Bankers' L. & Inv. Co., 112 Va. 630, 72 S.E. 129, Ann. Cas. 1913B, 887. A careful e......
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Dolph v. Lennon's, Inc.
... ... other meaning.' " ... See, ... also, Id ... § 46; Goldman v. Feder, 84 W.Va ... 600, 100 S.E. 400, 7 A. L. R. 246 ... Lord ... Chancellor Eldon, in the case of Church v. Brown, ... ...