Smith v. Hamilton, 3763

• Decision Date: 29 December 1953
• Docket Number: No. 3763,3763
• Citation: 70 Nev. 212,265 P.2d 214
• Parties: SMITH v. HAMILTON.
• Court: Nevada Supreme Court

Page 214

265 P.2d 214

70 Nev. 212

SMITH v. HAMILTON.

No. 3763.

Supreme Court of Nevada.

Dec. 29, 1953.

Toy R. Gregory, Las Vegas, for L. J. H. Smith.

A. W. Ham & A. W. Ham, Jr., Las Vegas, for respondent E. G. Hamilton.

MERRILL, Justice.

This is an action brought by appellant as plaintiff to recover the sum of $1,818.31. The appeal is from summary judgment rendered in favor of defendant. The factual record consists of the pleadings and of affidavits filed in connection with the motion for summary judgment. In this opinion the parties will be designated as plaintiff and defendant.

Since the question before us is as to the propriety of a summary judgment and, thus, whether genuine issues have been created by the pleadings or proof offered, Rule 56(c), N.R.C.P., we shall for the purposes of this opinion accept as true the allegations and affirmations favorable to the position of the plaintiff. The facts, then, would appear to be as follows:

Defendant as lessee of certain property executed a sub-lease to one Guinn. Subsequently Guinn executed and delivered to defendant his promissory note in the amount of $2,500, as stated in the complaint, 'as security for the performance by the said E. Z. Guinn of all of the obligations imposed upon him in said sub-lease.' The giving of such security was not required by the terms of the sub-lease itself but apparently was pursuant to a supplemental agreement the nature of which does not appear from the record beyond the quoted allegation of the complaint.

Subsequently Guinn assigned to Thomas & Guinn, Inc. all of his assets in consideration of the assumption by the corporation of all of his liabilities. Specifically included among the assets so assigned was all Guinn's interest in the sub-lease from defendant. Such assignment was without the consent of defendant and in that respect was contrary to the provisions of the sub-lease. The corporation then paid to defendant the sum of $2,000 upon Guinn's promissory note. Subsequently the lease was terminated by defendant who thereupon retook possession of the premises. At the time of termination accrued rental amounted to $181.69.

This action was brought by plaintiff as receiver for Thomas & Guinn, Inc., to recover back from defendant the sum of $2,000 paid upon the note as security for performance less the amount of accrued rental. For the purposes of this action it is conceded by plaintiff that termination of the lease was proper.

Following the filing of an answer, defendant moved for summary judgment. Plaintiff countered with his own motion for summary judgment. Affidavits were introduced by both parties. Plaintiff's motion was denied; defendant's motion was granted and the action dismissed.

Defendant does not claim forfeiture of the security deposit and concedes that he is not entitled to retain the sums of paid beyond compensation for accrued rental and damages. See: 52 C.J.S., Landlord and Tenant, § 473c, p. 220. In support of the decision of the lower court defendant contends that plaintiff has not established that he is the one entitled to the return of the deposit. His position is first: that since the assignment of the sub-lease to the corporation was without his consent and thus contrary to the terms of the sub-lease, the corporation could acquire to rights by virtue of the assignment; second: that if the right of recovery which plaintiff here asserts be deemed a chose in action apart from rights held under the lease, there was no assignment of such chose in action, the allegations of the complaint referring only to an assignment of the rights under the lease. See: 52 C.J.S., Landlord and Tenant, § 473e, p. 225, where it is stated, 'An assignment of the lease by the tenant does not of itself pas title to the deposit securing performance...