Mcfarland v. Mayo
| Decision Date | 12 September 1916 |
| Docket Number | Case Number: 7722 |
| Citation | 65 Okla. 28,1916 OK 775,162 P. 753 |
| Parties | MCFARLAND v. MAYO et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Landlord and Tenant--Rent--Assignment of Lease.
Where one enters into a lease contract whereby he covenants and obligates himself to pay rent, the assignment of the lease by him and the agreement of the assignee to fulfill the covenants of the lease, the payment of the rent as same matures and the acceptance thereof by the landlord, does not release the lessee from the terms of his lease.
2. Novation--Requisities.
In order to show a novation of a contract, there must be a substitution of the new and a release of the old tenant by the agreement of the parties or the existence of such facts and circumstances as to create a surrender and acceptance of the leased premises by operation of law, and the evidence here examined, and it is held, same fails to establish a novation.
Error from District Court, Grady County; Will Linn, Judge.
Action by J. W. Mayo and others against Z. L. McFarland. Judgment for plaintiffs, and defendant brings error. Judgment modified and affirmed.
Riddle & Hammerly, for plaintiff in error.
Holding & Herr and Bond, Melton & Melton, for defendants in error.
¶1 On the 1st day of April, 1909, the plaintiff in error entered into a written contract with W. E. Cecil, whereby he leased the real estate involved here for a period of five years, payable at the rate of $ 150 per month. Under the terms of the contract, plaintiff in error was to keep and maintain at his own expense said buildings in proper repair during the life of the lease, and under the contract the right of McFarland to assign or sublet was not mentioned.
¶2 The said McFarland took possession of said property on the 1st day of April, 1909, and used and occupied the same under said contract from that time until March, 1910, when he sold a one-half interest in his lease contract to one J. S. Jones, and on November 18, 1910, he sold his remaining one-half interest to one Ella Cross. At the time of the sale to Mrs. Cross the plaintiff in error assigned the lease contract executed between him and Mr. Cecil by proper indorsement on the back thereof. During the time the plaintiff in error occupied the premises he deposited the rents to the credit of W. E. Cecil, the owner, in a bank in Chickasha, with which one Ben F. Johnson was connected.
¶3 After the assignment of all his interest in said lease, the assignee of the lease continued to pay the rent for some time in the same manner as the plaintiff in error had formerly paid, that is, by depositing the same to the credit of Mr. Cecil in said bank at Chickasha. Subsequently the assignee failed to pay said rent, and this suit was instituted by one J. W. Mayo, who purchased the property after the assignment of the lease by the plaintiff in error from the said Cecil, to recover the rent due thereon at the time of the institution of this suit, and for repairs made on the property during the life of the lease.
¶4 The answer of the plaintiff in error sets up the fact that prior to the time plaintiff purchased said property the defendant, McFarland, transferred the lease to one Jones and one Cross, who assumed all liability, and expressly agreed to perform all the conditions of said lease contract, which was assented to by W. E. Cecil, the then owner of the property, and that by common understanding of all parties the original contract made by plaintiff in error with the then owner of the property was canceled and surrendered, and a new contract was impliedly consented to by the then owner, W. E. Cecil, whereby the plaintiff in error was to be released from all liability and the said Jones and Cross accepted as the tenants of said property. This was denied by the plaintiff, and said cause came on for trial, whereupon the said McFarland, assuming the burden of proof, introduced the following testimony, to wit:
¶5 The witness Z. L. McFarland testified that in 1909 he rented said property for a period of five years, and agreed to pay therefor $ 150 per month and keep up repairs of buildings while he occupied the same; that subsequent to the execution of the lease he assigned his interest to Jones and Cross and delivered to them his contract, which he had not seen since; that he thereupon turned the property over to them and had nothing further to do with it, nor had he exercised any act of control or possession over said property from that time on; and that he thereupon notified by letter the then owner of the property, W. E. Cecil, at his post office address in Arizona, to the effect that he had sold the property and assigned his lease, and did not intend to have anything further to do with it, and that he must look to Jones and Cross for his rent, and that they would pay him the rent; that during the time he occupied the property he paid the rent to the First National Bank, with which one Ben-F. Johnson was connected, as he was instructed to do by Mr. Cecil; that he never heard anything from the letter.
¶6 Ben F. Johnson testified that he was vice-president of the First National Bank of Chickasha, and had been for 15 years; that he was acquainted with the real estate involved here, and one Mr. Cecil at the time he owned said property; that the monthly rentals on said property were deposited in the First National Bank to the credit of Mr. Cecil as same were paid, and the deposit tickets made to show by whom said rent was paid; and that the bank notified Mr. Cecil of said payment by sending to him a copy of the deposit ticket.
¶7 This is substantially all the evidence that was introduced upon the trial of said cause seeking to establish a novation of the original contract or substitution of Jones and Cross as the tenants of Cecil. instead of McFarland. At the conclusion of this evidence the plaintiff demurred thereto, which demurrer was by the court sustained, and judgment entered in favor of the plaintiff and against the defendant below for the amount due under said contract, to which ruling of the court McFarland excepted and has appealed here. It is asserted that the lower court committed an error, for the reason that plaintiff in error had the right to have a jury pass upon the question of fact presented by this evidence, and that he was entitled to all of the reasonable inferences from the evidence that was introduced.
¶8 It must be conceded that if this evidence thus introduced, or any inference that can reasonably be drawn therefrom, is capable of two constructions of meanings, the trial court committed an error in refusing to permit a jury to pass upon the same, for it is only permissible to direct a verdict where the evidence is such that all men will reach the same conclusion. We have carefully considered this evidence, and the most favorable construction that we can place upon it, so far as the plaintiff in error is concerned, is that he assigned his lease to Jones and Cross, notified the owner of the property of that fact, and refused to have anything further to do with the real estate that he had leased. The evidence further shows that Jones and Cross paid the rent just as McFarland had paid it before by depositing the same to the credit of Cecil in the First National Bank, to whom deposit slips were sent showing by whom the deposits were made.
¶9 It is not claimed here that Cecil, the then owner of the property, ever consented or agreed to release McFarland or to accept Jones and Cross as his tenants instead of McFarland, further than what consent might arise by silence or failure to object to the propositions advanced by McFarland. So far as this record is concerned, Jones and Cross were strangers to Cecil, and their ability to comply with said lease contract unknown to him, and we must say, under the evidence as we view it, a novation of the contract is not shown here, nor...
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