Kimbriel v. Montgomery
| Decision Date | 09 May 1911 |
| Citation | 115 P. 1013,28 Okla. 743,1911 OK 168 |
| Parties | KIMBRIEL v. MONTGOMERY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where plaintiff in error fails to assign as error the overruling of the motion for a new trial, in the petition in error, no question is properly presented in this court to review errors alleged to have occurred during the progress of the trial in the court below.
As between the lessor and sublessee of the original lessee there is neither privity of estate nor privity of contract; the lessor cannot sue the sublessee upon the lessee's covenant to pay rent.
Error from Bryan County Court; Chas. A. Phillips, Judge.
Action by W. G. Montgomery against A. L. Kimbriel. Judgment for plaintiff, and defendant brings error. Affirmed.
Crook & Kyle, for plaintiff in error.
Edward Howell, J. T. McIntosh, and C. B. Cochran, for defendant in error.
On December 4, 1909, W. G. Montgomery, defendant in error, sued A. L. Kimbriel, plaintiff in error, in the county court of Bryan county. His petition substantially states that on July 1, 1907, he and defendant entered into a certain lease which he filed as an exhibit, whereby defendant leased of him a certain business house in Shawnee, Okl., therein described for a term beginning August 1, 1907, and ending July 31 1908, for $75 per month, payable monthly in advance; that defendant took and held possession thereunder until the expiration of his term, at which time there was due and unpaid thereon the rent for May, June, and July, 1908, except $15 which was paid; that it was stipulated in said lease that at the expiration thereof defendant would return the property in as good condition as the same was at the time said lease was executed, "wear and tear and inevitable accident and loss by fire excepted"; that during the term a glass was broken out of the front window; that the same was not the result of an inevitable accident or caused by usual wear and tear or by fire; that defendant has failed and refused to replace the same or pay therefor, to plaintiff's damage $11.50 for said glass and $210 for rent, in all the sum of $221.50. For answer defendant admitted the execution of the lease, but denied said damage. For further answer he pleaded that he retained possession thereof under said lease until about February 8, 1908, about which time he subrented the same to one --for the balance of his term at the rate of $60 per month, at which time said -- agreed to surrender possession of the premises to him on July 30, 1908; that according to the terms of said contract said -- was to conduct a confectionary business in the premises; that plaintiff well knew that said business was to be so conducted for the remaining portion of defendant's term and agreed to the same, but, on being informed of the amount of rent agreed upon between defendant and --, he refused to permit said transaction to be consummated, and forbid defendant to sublet the said premises to -- and so notified him; that thereupon defendant abandoned the...
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