Goodwin v. Grosse

SHAW, J.

Plaintiff had judgment in an action for unlawful detainer, from which defendant has appealed.

It appears that plaintiff by a written lease let and demised to defendant certain premises consisting of two storerooms, one of which is designated as 66 North Broadway, in Pasadena, for. a term of one year from October 31, 1919. This lease contained a provision as follows:

“It is understood and agreed that the party of the second part (the lessee) shall not assign or transfer this lease, nor sublet any portion of the premises without the written consent of the party of the first part; and furthermore that any attempted assignment or transfer of this lease, or any attempted subletting of said premises, without such written consent, shall be void. It is agreed and understood

[617]

that if any . . . default be made in any of the covenants herein contained, it shall then be lawful for the party of the first part to re-enter said premises and to remove all persons therefrom.5 ’

It further appearing without controversy that on May 1, 1920, during the term for which the premises were so let and demised to defendant, and while he was occupying the same under the terms and conditions of said lease, he, without obtaining any written consent of plaintiff so to do, executed a written lease to Brinley Brothers whereby he demised and let unto them, for a term ending October 31, 1920, a part of said premises, to wit, those designated as No. 66 North Broadway. That on June 14, 1920, plaintiff caused to be served upon defendant a written notice of the termination of tenancy, alleging as a ground therefor the breach of the covenant contained in said lease whereby it was agreed that no part of the premises should be sublet without her written consent; and thereafter, to wit, on June 28, 1920, caused to be served upon defendant a three-day notice to quit the premises.

In his answer defendant, in substance, alleged that in the collection of rents and in all matters connected with the lease and defendant’s acts thereunder, one H. F. Newell was plaintiff’s agent; that as such agent Newell assured him there would be no objection to his subletting the premises to any one so long as defendant remained upon the premises; that thereafter, to wit, on May 1, 1920, defendant, acting in reliance upon the repeated assurances given by Newell as agent of plaintiff to the effect that there would be no objection to his subletting the premises so long as defendant remained thereon, sublet a portion of the same to Brinley Brothers; that for two or three weeks prior to the first day of June, 1920, Newell, as such agent, had actual knowledge of the subletting to Brinley Brothers, and that plaintiff prior to June 1, 1920, had knowledge of such fact; that with such knowledge Newell as agent of plaintiff, without objection, did on June 1, 1920, accept the rent for the month expiring July 1st thereafter, and made no objection to the subletting of which he had knowledge; and, further, that prior to the first day of June, 1920, plaintiff had knowledge of all the facts relating to the act of defendant in subleasing a part of the premises,