Jandrew v. Bouche

• Decision Date: 27 November 1928
• Docket Number: No. 5400.,5400.
• Citation: 29 F.2d 346
• Parties: JANDREW v. BOUCHE. In re BAUM & RUBIN.
• Court: U.S. Court of Appeals — Fifth Circuit

29 F.2d 346 (1928)

JANDREW v. BOUCHE.^*

In re BAUM & RUBIN.

No. 5400.

Circuit Court of Appeals, Fifth Circuit.

November 27, 1928.

Robert Allen Ritchie and Lewis M. Dabney, Jr., both of Dallas, Tex. (Dabney, Goggans & Ritchie, of Dallas, Tex., on the brief), for appellant.

Albert Sidney Johnson and Eugene P. Locke, both of Dallas, Tex. (Locke, Locke, Stroud & Randolph, of Dallas, Tex., on the brief), for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

By an agreement dated March 9, 1926, appellee leased certain premises in the city of Dallas, known as 1306 Main street, to David Baum and Nathan Rubin, composing the firm of Baum & Rubin, for a term beginning January 1, 1928, and continuing until December 31, 1929, at a monthly rental of $450. The lease contained a stipulation against its assignment without the consent of the lessor, except in certain contingencies not material to this case, and contained the following clauses:

"That in case of default in the performance of any of the obligations upon the part of the lessees expressed or implied in this lease, the lessor may enforce the performance thereof in any mode or modes provided by law, and may declare the lease forfeited at her discretion, and her agent or attorney shall have the right, without further notice or demand, to re-enter and remove all persons therefrom without being deemed guilty of any manner of trespass and without prejudice to any remedies of arrears of rent or breach of covenant, or her agent or attorney may resume possession of the premises and relet the same for the remainder of the term at the best rent they may obtain, for account of the lessees, who shall make good any deficiency; and the lessor shall have a lien as security for the rent aforesaid during the entire term of this lease, upon all the goods, wares, chattels, implements, fixtures, furniture, tools and other personal property which are or may be put on the leased premises.

"That the lessees shall actively operate their said business in said storeroom during the period of this lease, and shall not permit or suffer any of the goods, wares, chattels, implements, fixtures, furniture, tools, or other personal property which may be on the said premises at any time during the period of said lease to be seized under any legal process or to pass into the hands of any receiver or trustee in bankruptcy or other officer, and that this lease shall be personal to the lessees and shall not inure to the benefit of any receiver or trustee in bankruptcy as an asset of the said lessees."

Baum & Rubin were adjudicated bankrupts on January 16, 1928. Appellant was appointed receiver on that day, and on January 27th became trustee. On January 30, 1928, he sold the entire assets of the bankrupts on the leased premises and turned same over to the purchaser, together with the keys of the store, telling him that he had no interest in the lease, and that the purchaser would have to make arrangements with the landlord if he desired to...