Reuling v. Sergeant

[242]

DOOLING, J.

Plaintiff purchased the furnishings and equipment of a guest house in Berkeley and took a lease upon the house in which the business was conducted from the defendant. The lease contained the following provision:

"That the Lessee will not assign this Lease, or any interest therein, without the written consent of the Lessor first had and obtained, but the Lessor agrees not to withhold his written consent to assign this Lease to anyone equally as financially and morally responsible as the Lessee herein named.”

Plaintiff and a husband and wife named Campbell entered into a contract for the sale of such furnishings and equipment and the assignment of said lease to the Campbells. Defendant refused to execute a written consent to the assignment of the lease and the Campbells on that ground withdrew from their contract with plaintiff. Plaintiff thereupon sued defendant for damages for breach of covenant to consent to assignment. Judgment went for defendant and plaintiff appeals.

Respondent argues that there was no covenant by her to consent to an assignment which will support an action for damages, citing

Kendis

v.

Cohn,

90 Cal.App. 41, 64 et seq. [265 P. 844], and several New York and English cases. Appellant counters that the language of this lease, “Lessor

agrees

not to withhold his written consent,” imposes a contractual obligation which will support an action for damages for its breach.

(Underwood Typewriter Co.

v.

Century Realty Co.,

220 Mo. 522 [119 S.W. 400, 25 L.R.A.N.S. 1173];

Hedgecock

v.

Mendel,