Anthony MacAroni Co. v. Nunziato

[589]

EDMONDS, J.,

pro tem.

Plaintiff sued for $6,000 rent for the period from October 1, 1930, to July 1, 1931, on a written lease, made in July, 1928, between Ralph Raulli and Anthony Bizzari, as lessors, and respondent Salvatore Nunziato, as lessee. Only Raulli and Nunziato signed this lease, and the ease presents the question of the liability of a lessee under a lease executed by only one of the two named lessors. The complaint alleges that at the time the lease was made Raulli and Bizzari were owners as tenants in common of the property leased; that thereafter Raulli transferred his interest to Bizzari; and that Bizzari and his wife afterward transferred' the lease to appellant.

Among other defenses pleaded in the answer, it is alleged that respondent in July, 1928, purchased a macaroni business from Raulli under an agreement which provided that Raulli would assign to respondent an existing lease on the premises in which the business was carried on; that thereafter Raulli requested respondent to accept a new lease between him and Bizzari, as lessors, in lieu of an assignment of the existing lease; that respondent agreed to accept such lease provided that it was signed by both Raulli and Bizzari; that respondent had entered into possession of the premises under Raulli’s agreement to procure the assignment of the first lease, and executed the lease sued upon only on condition that it would be signed by Bizzari; that Bizzari never signed it but that respondent was willing until March, 1930, to accept either the assignment of the lease as originally agreed upon, or the new lease executed by both Raulli and Bizzari, but that he could not obtain either, and that he removed from the premises in October, 1930.

The trial court found all of the foregoing facts to be true and gave judgment for defendant.

The principal ground urged by the appellant on its appeal from the judgment is that the respondent is bound by the terms of the lease although only one of the two owners of the property ever signed it. It is contended that the findings of the trial court that the lease was never executed or delivered are not supported by the evidence.

In the case of