Mars v. Spanos

• Decision Date: 06 December 1943
• Docket Number: No. 8397.,8397.
• Citation: 139 F.2d 369,78 US App. DC 230
• Parties: MARS et al. v. SPANOS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

78 US App. DC 230, 139 F.2d 369 (1943)

MARS et al. v. SPANOS.

No. 8397.

United States Court of Appeals. District of Columbia.

Argued November 9, 1943.

Decided December 6, 1943.

Mr. John R. Walker, of Washington, D. C., with whom Mr. Achilles Catsonis, of Washington, D. C., was on the brief, for appellants.

No appearance for appellee.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

PER CURIAM.

This proceeding was begun in the District Court by James Spanos, as plaintiff, to establish the existence of a partnership between himself and Theodore Mars, the ownership by the partnership of a five-year lease to No. 335 Pennsylvania Avenue, Southeast, in the District of Columbia, and an accounting of the partnership business. After pre-trial one Samuel Revis, a former partner, petitioned for and was granted permission to intervene as a party defendant.

The District Court appointed a receiver for the business and referred the issues and pleadings to a master. The master reported, inter alia, that Mars and Revis became partners in the business in February, 1941, and as partners secured from the owner a five-year lease of the Pennsylvania Avenue store, which thereupon became partnership property, that by mutual consent Revis a few days later voluntarily withdrew and received back all payments made by him to the partnership; that thereafter Mars and Spanos, by oral agreement, became general partners; that the lease, under the agreement between them, continued as partnership property, and the partnership duly paid the rent for the whole period of its occupancy by the partnership and by the receiver for the partnership. The District Court confirmed the report of the master in these respects, dissolved the partnership, directed sale of the property, including the lease, and ordered a division of the proceeds, subject to certain particular charges not in controversy. The evidence sufficiently sustains the findings.

This appeal on behalf of both Revis and Mars challenges the decision of the court as to the ownership of the lease,— (1) because of a provision therein that no assignment should be made except by consent of the lessor; and (2) on the ground that the attempted transfer of the lease by Revis to Mars and by Mars to the partnership was invalid because not in writing.

First. We are of opinion that there is no merit in either contention. We think the rule well established that a covenant in a lease against assigning — being for the benefit of the lessor — may be availed of only by him or his representative or assignee. See Teator v. King, 35 Wash. 138, 76 P. 688; Potts Drug Co. v. Benedict, 156 Cal. 322, 104 P. 432, 25 L.R.A.,N.S., 609; Webster v. Nichols, 104 Ill. 160; Eldredge v. Bell, 64 Iowa 125, 19 N.W. 879. Here the landlord is not only making no objection to the assignment, but has ratified it by accepting from the partnership and the receiver the rent money for two years as it became due...