W.C. Hines Company v. Angell
| Decision Date | 10 March 1933 |
| Docket Number | 29,105 |
| Citation | 247 N.W. 387,188 Minn. 387 |
| Parties | W.C. HINES COMPANY v. NELSON D. ANGELL |
| Court | Minnesota Supreme Court |
Action in the district court for Crow Wing county by a lessee against its assignee to recover rent paid by the former. There were findings, Alfred L. Thwing, Judge, in favor of plaintiff, and defendant appealed from an order denying his motion for a new trial. Affirmed.
Landlord and tenant -- assignment of lease -- waiver of covenant.
1. A lessee's covenant against assignment without written consent of the lessor, however stringent, may be waived by the lessor. So held where the assignee went into possession and so remained for two years, paying rent directly to the lessor, which was accepted by the latter without objection or reservation.
Landlord and tenant -- assignment of lease -- liability of assignee.
2. Such an assignee of the lease is primarily liable for the rent and the lessee, being compelled to pay upon his default, is entitled to reimbursement.
Landlord and tenant -- assignment of lease -- liability of assignee.
3. The assignee does not relieve himself of liability by mere abandonment of the premises.
Wright Nelson & Plunkett, for appellant.
Ryan, Ryan & Ryan, for respondent.
STONE, JUSTICE. Action by lessee against its assignee to be reimbursed for rent paid. Plaintiff got the decision. Defendant appeals from the order denying his motion for amended findings or new trial.
March 20, 1928, plaintiff sold defendant its store in the city of Austin. Plaintiff held the premises under a lease which covenanted not to assign "without first obtaining * * * written consent of the lessors." If assigned without such consent, the lease stipulated that "neither acceptance of rent by the lessors from the lessee, or any other person, thereafter, nor failure on the part of the lessors for any particular period to take action on account of such breach, or to enforce their rights, shall be deemed a waiver of the breach, but the same shall be a continuing breach as long as such subtenancy continues."
The contract of sale recited that plaintiff "has sold and does hereby agree to transfer, convey and set over to the" defendant not only the fixtures and merchandise but "also that certain lease covering the said premises, dated July 15, 1927, and running for a period of 3 years." The lessors refused written consent to the assignment. No more formal assignment was ever made.
Defendant took immediate possession under his contract with plaintiff and operated the store for about two years. During that period he paid the monthly rental to, and it was accepted by, the lessors without question or reservation. Late in March, 1930, defendant quit the premises and delivered the key to the lessors. Plaintiff, being liable therefor, paid the rent for the remainder, the last three and a half months, of the term, and in this action seeks reimbursement. Defendant denies liability.
1. As to the contract between plaintiff and defendant, if there were any question of construction, the solution would be facilitated and strengthened by the obvious effect given the transaction by the parties themselves. Wilmot v Minneapolis A.T. Assn. 169 Minn. 140, 210 N.W. 861. By them it was considered sufficient assignment of the lease. The only obstacle was the covenant against assignment without written consent of lessors. But such a covenant, however stringent, may be waived by subsequent conduct manifesting that intention. Or the lessor may estop himself to question either assignee's right to possession or his own to claim a forfeiture for the breach. It is said to be the law that, with such a clause and a breach thereof, the lessor has only the option to forfeit for breach of condition, and "that the assignment is not void but passes the term, and the only remedy is for breach of the covenant."
J.S Potts Drug Co. v. Benedict, 156 Cal. 322, 327, 104 P. 432, 435, 25 L.R.A.(N.S.) 609. That aside, defendant as assignee went into possession with knowledge of the lessors, who accepted rent from his during the next two years without reservation. It seems rather obvious, therefore, that as to him they had either waived whatever claim they may have had to object to the assignment (Cohen v. Todd, 130 Minn. 227, 153 N.W. 531, L.R.A. 1915E, 846) or had estopped themselves to question his right as assignee. The assignment was of the whole term; and, defendant having gone into possession, there was...
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