Holwick v. Walker

MARKS, J.

Plaintiff brought this action to secure the rescission of the sale to him of a fountain lunch business in the Bear Market in Glendale, California, the cancellation of his promissory note for $110 given as part of the purchase price, and the recovery of $990 paid on the purchase price. Judgment went for defendants and this appeal followed.

While various fraudulent representations are set forth in the complaint the evidence has limited them to but two which are necessary to be here considered. (1) (a) The validity of a sublease where the lease and sublease contain provisions against subleasing and assignment without the written consent of the lessors and the sublessor, and (b) the validity of a sublease which did not have attached to it the seal or the signature of an officer of the subleasing corporation. (2) The cost of an awning used on the subleased premises.

[671]

The premises in question here constituted a stall in what was known as the Bear Market. The building was owned by D. C. and Mary A. Bear. They leased the premises in question to the Dutch Chain Stores, Inc. It in turn subleased to defendants. Both the lease and the sublease contained provisions prohibiting the lessee and the sublessees from assigning or subleasing without the respective written consents of the lessors and the sublessor. The sublease to defendants was dated March 9, 1931, and was signed “R L. Anderson, Sublessor”. Defendants paid their rent and remained in undisturbed possession of the premises until they delivered possession to plaintiff on June 16, 1932. The possession of plaintiff was not disturbed. He voluntarily abandoned possession on August 13, 1932.

Plaintiff was a realtor and as such endeavored without success to sell the fountain lunch business for defendants. In the latter part of May, 1932, he conceived the idea of purchasing the business for himself and negotiations were consummated on June 15, 1932, plaintiff paying defendants $900 in the form of a check, $90 in back rent, '$110 in a promissory note, and the assumption of about $424 unpaid on a lease contract covering fixtures which defendants were purchasing from Western Dairies, Inc. Defendants had paid $625 advance rent at the time they received their sublease. In the sale plaintiff received the benefit of this credit. Plaintiff stopped payment on his check on the day it was given. The next morning he had further negotiations with Henry A. Walker and either D. C. Bear or Hayden Bear, his son, or both, and the $900 was paid defendants on that day and possession delivered to plaintiff.