Leckie v. Dunbar, Case Number: 24899

• Decision Date: 30 June 1936
• Docket Number: Case Number: 24899
• Citation: 1936 OK 463,177 Okla. 355,59 P.2d 275
• Parties: LECKIE v. DUNBAR et al.
• Court: Oklahoma Supreme Court

1936 OK 463

59 P.2d 275

177 Okla. 355

LECKIE v. DUNBAR et al.

Case Number: 24899

Supreme Court of Oklahoma

Decided: June 30, 1936

Syllabus

¶0 1. APPEAL AND ERROR - Sufficiency of Evidence in Jury-Waived Case.

In a law action, where trial by jury is waived, the finding of the trial court will not be reversed on appeal when there is competent evidence reasonably tending to support such finding.

2. LANDLORD AND TENANT - Relations Resulting From Assignment of Lease by Lessee - Lessor May Recover From Either Lessee or Assignee on Original Covenant to Pay Rent.

In an assignment by the lessee of a lease there still remains privity of contract between the lessor and the original lessee, and there is also privity of estate between the lessor and assignee, enabling the lessor to recover from either the original lessee or assignee upon the original lessee's covenant to pay rent.

3. SAME - Effect of Sublease Distinguished.

In a sublease by the lessee of a lease, there is neither privity of contract nor privity of estate between the lessor and sublessee, and the lessor cannot recover from the sublessee upon the original lessee's covenant to pay rent.

4. SAME - Essentials of Assignment of Lease - Assignment of Part of Premises.

To constitute an assignment of a lease by the lessee, the whole interest of the lessee must pass for the whole term, but there can be an assignment of part of the premises providing the whole interest in that part is passed for the whole term of the original lease.

5. SAME - Essentials of Sublease.

To constitute a sublease, the lessee must not pass the whole interest for the full term, but must retain some sort of reversionary interest.

6. SAME - Agreement Between Lessor and Lessee for Lien to Secure Rent on Personalty on Premises but Never Owned by Lessee Held not to Bind Personalty When Bought by Sublessee.

An agreement between lessor and lessee creating a lien in favor of lessor to secure rent, on property located on the demised premises, but never owned by the lessee, does not bind the property when purchased by a sublessee who was not a party to the agreement.

7. APPEAL AND ERROR - Change of Theory of Case on Appeal not Permissible.

A party is not permitted to present to this court for the first time a new theory which was not presented in the court below.

Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.

Action by Mabel D. Leckie against Fred C. Dunbar and others. From an adverse judgment, plaintiff appeals. Affirmed.

Reily & Reily, for plaintiff in error.

Roy F. Lewis and Charles E. Wells, for defendants in error.

PER CURIAM.

¶1 This is an appeal by plaintiff below from the district court of Pottawatomie county, wherein judgment was rendered for defendant below. The parties will be referred to as they appeared in the trial court. The defendant Fred Dunbar was not served with summons and made no appearance, and the facts revealed no partnership between the Shoshone brothers, so the case before us involves the right of plaintiff to recover rent from defendant, Lester Shoshone. It seems that plaintiff was the owner of a building and leased a space therein, 15 by 60 feet, to Fred Dunbar for $14,400, payable at the rate of $200 per month for the first twelve months, and thereafter at the rate of $250 per month. The lease was made March 9, 1931, and the term was provided as follows:

"To have and to hold the same to the said party of the second part (Dunbar) from forty-eight hours after the sale of the stock of Gray's Diamond Shop by the trustee in bankruptcy, to the first day of April, 1936."

¶2 The lease contained a further provision that the lessor would have a lien on the personal property and stock of goods contained in the building to secure payment of the rent.

¶3 At the bankruptcy sale the defendant, Lester Shoshone, bought the stock of goods and immediately took possession of the premises and occupied same for a month and 18 days under an oral agreement with Dunbar. Then on May 1, 1931, they entered into a written lease by the terms of which Dunbar "subleased" to the defendant, Lester Shoshone, the whole premises, for a period of six months, at the rental of $200 per month, payable in advance. It was provided that Lester Shoshone reserved the right to pay the rent direct to the owner of the building during that six-months period. The lease also contained the provision that Dunbar had the option of purchasing the fixtures for $3,000, and the stock at invoice price less 30 per cent., and if this option was not exercised within the six-month period, then Dunbar was to retain the front two-thirds of the west half of the rented space, and Lester Shoshone was to pay rent to Dunbar for the remaining part that he occupied, at the rate of $100 per month for the following twelve months.

¶4 This arrangement worked out satisfactorily until the end of the six-month period, which was November 1, 1931. Lester Shoshone had occupied the premises for seven months and 18 days, and paid the specified rent direct to plaintiff's agent. Dunbar had not exercised his option to purchase the fixtures and stock of goods by November 1, 1931, so according to their lease Lester Shoshone was to thereafter occupy only part of the premises and pay $100 rent as such sublessee, and Dunbar was to occupy the remaining part under his original lease with plaintiff. Instead of this, however, Lester Shoshone remained in possession of the whole premises, but only paid $100 per month rent. Plaintiff then sought to recover from the defendant, Lester Shoshone, the other $100 per month rent from November 1, 1931, to the date of the trial, and sought to impress the lien on the stock of goods for said amount.

¶5 From our examination of the pleadings and evidence, it is clear that the plaintiff proceeded at the trial below on the theory that the defendant, Lester Shoshone, had orally assumed the lease between plaintiff and Dunbar with all its obligations. The testimony on this point was conflicting. Plaintiff's agent testified that Lester Shoshone did assume the lease, and Lester Shoshone testified that he did not. The jury being waived, the trial court decided in favor of Lester Shoshone. This court has held that in a law action, where trial by jury is waived, the finding of the trial court will not be reversed on appeal when there is competent evidence reasonably tending to support such finding. Hawkins v. Howard et al., 167 Okla. 480, 30 P.2d 696; Hotel Tulsa Tailors v. Tulsa Industrial Loan & Investment Co., 167 Okla. 472, 30 P.2d 682; Traux v. Capitol Life Insurance Co., 166 Okla. 153, 26 P.2d 755. The trial judge was in a position to observe the demeanor of the witnesses giving conflicting testimony, and under the rule just cited his decision in this respect cannot be disturbed.

¶6 Since we find no express agreement by Lester Shoshone to pay the rent provided for in the lease from plaintiff to Dunbar, the next question is whether Lester Shoshone is liable by reason of his agreement with the lessee, Dunbar. To answer this question we must note the distinction between an "assignment" and a "sublease." It is elementary that a lease creates both privity of contract and...