Amling v. Bryan

HOUSER, J.

As shown by the findings of fact herein it appears that plaintiffs leased certain real property to defendant Bryan; that the lease contained a provision against its assignment or the subletting of the leased premises without the written consent of the lessor being first, obtained; that notwithstanding such provision, and without first obtaining such written consent of the lessor, the lessee executed and delivered an assignment of the lease; also that he sublet the property-—all of which conduct on the part of the lessee precipitated an action in unlawful detainer on the part of plaintiffs against the defendants Saxton and Bryan. The trial of the action resulted in a judgment for possession and damages in favor of the plaintiffs, and defendants appeal therefrom.

Appellants contend that in order that any assignment of the lease should be violative of the provisions thereof to which reference has been had, such assignment must have been in writing. That objection, however good in the abstract, is completely disposed of by the finding of fact by the trial court, based upon sufficient evidence, that such assignment was made for a valuable consideration; that it was in writing, and that it was delivered to the assignees thereof.

Appellants also feel aggrieved because of the finding by the trial court that contrary to the provisions of the lease the lessee sublet the leased premises without first having obtained the written consent of the lessor so to do, and insist that a sublease for a longer period than one year would necessarily have to be in writing. • The finding by the court with reference to such subletting in that regard simply was that on a designated date, for a fixed consideration per month, the lessee sublet the premises described in the lease to a certain person and thereupon delivered possession of said premises to him, etc. The term of the sublease is not mentioned in the findings other than that it may be inferred therefrom that it was a month-to-month tenancy. Because it does not affirmatively appear that there was a subletting of the premises for a period longer than one year, it becomes

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manifest that the point to which appellants refer does not arise in the case.

Appellants also cite authorities and argue to the effect that covenants in a lease against assignment and subletting should be strictly construed. While the general rule is in accordance with such contention, as is clearly stated in one of the cases cited by appellants, it “does not mean that the court must resort to scholastic subtleties to save tenants from the consequences of their deliberate breach of their covenants.”