Nelson v. Angel
| Citation | 210 P.2d 256,94 Cal.App.2d 136 |
| Court | California Court of Appeals |
| Decision Date | 14 October 1949 |
| Parties | NELSON v. ANGEL et al. Civ. 13986. |
Charles A. Christin, Thomas J. Keegan, Earl J. Carroll, J. W. Radil, O. A. Hunt, San Francisco, for appellant.
Philander Brooks Beadle, San Francisco, for respondents.
This is an appeal from a judgment in defendants' favor after their demurrer to the amended complaint had been sustained without leave to amend.
The action was brought by the lessor against his two lessees of premises on Mason street, in San Francisco, to be occupied as a night club. The lease was dated April 30, 1947, to run for a term of ten years commencing on August 1, 1947.
The lease (which consists of some 33 articles) provides that it may be assigned to a California corporation organized by lessees. Such corporation, named Hellenic Enterprises, Inc., was so organized, an assignment to it was made on July 1, 1947, and the corporation on that day accepted and assumed the lease and agreed to perform and be bound by all its terms and conditions. Hellenic Enterprises, Inc., is not sued.
Attached to the lease is an inventory of the equipment, furniture and other personal property located on the premises and owned by lessees, 'subject to certain encumbrances'.
By paragraph 4 lessees agreed to execute to lessor and record, not later than July 31, 1947, a chattel mortgage which would be a first lien (1) on all the inventoried property, free and clear of all encumbrances, and (2) on all equipment, furniture and personal property thereafter placed in the premises, which would be a first lien thereon subject to any conditional sale contracts covering such new property (with certain limitations respecting the amount or value thereof), to secure the faithful performance of the lease including the rent. Paragraph 4 provided, further, that whenever any personal property was placed by lessees on the property subject to conditional sales contracts, exact copies of such contracts would be immediately furnished to lessor, who would have the right to pay off such contracts, and to have them assigned to him by the conditional vendors.
Paragraph 5 contains the provisions mentioned above respecting assignment to a corporation. Those provisions, however, contain the proviso that such assignment may be made only if lessees 'are not then in default in the performance of any of the terms of this lease * * * and upon the written assumption of this lease by such corporation and the compliance by said Lessees or by said corporation of the terms of [94 Cal.App.2d 138] paragraph 4 above relating to the security for this lease, Lessees shall be personally discharged from all liability under this lease, except that Lessees shall severally remain liable to Lessor upon their covenants in said paragraph 4 to pay to the conditional vendors and to Lessor all balances due under all conditional sale contracts not later than July 31, 1948, and except that Lessees shall also at all times remain liable for all of the obligations of this lease pursuant to the terms of paragraph 6 hereof relating to alcoholic beverage licenses.'
The amended complaint alleges that the lessee-defendants 'failed, neglected and refused to execute and deliver the chattel mortgage and-or chattel mortgages referred to in paragraph 4' and that they purchased personal property under conditional sales contracts but did not immediately furnish lessor with exact copies thereof as agreed in the lease.
The question for decision is whether these allegations show that the lessees continued to be liable for such alleged breaches after their assignment to Hellenic Enterprises, Inc.
'Ordinarily an assignment of a lease does not release the lessee from his obligations even...
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Hohn, Application of
...126 Cal.App. 2d Supp. 845, 846-847, 272 P.2d 571; Perry v. First Corporation, 167 Cal.App.2d 359, 368, 334 P.2d 299; Nelson v. Angel, 94 Cal.App.2d 136, 139, 210 P.2d 256, the notice of appeal--'from that Order confirming award of Arbitrators'--filed between the date of order confirming awa......
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Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd.
...decided. Cf. In re Estate of Damke, 133 Cal. 433, 434, 65 P. 888; Adams v. Talbott, 20 Cal.2d 415, 417, 126 P.2d 347; Nelson v. Angel, 94 Cal.App.2d 136, 139, 210 P.2d 256; Crane v. Livingston, 98 Cal.App.2d 699, 702, 220 P.2d 744; Karrell v. Watson, 116 Cal.App.2d 769, 772, 254 P.2d 651, 2......
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Nelson v. Angel
...assignment of the lease to Hellenic Enterprises, Inc., the original lessees were no longer liable thereunder. It is reported in 94 Cal.App.2d 136, 210 P.2d 256. Therein the judgment of the trial court was reversed and it was held that according to the allegations in the complaint there had ......
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