Powell v. Mohr

WORKS, J.

One Beach, whose successor in interest was one Haas, demised to one Jaus a certain apartment house under a written lease which contained a provision that the lessee was “not to sublet the whole of said premises, nor to assign or transfer this lease . . . without the written consent” of the lessor. The instrument also contained a clause reciting that “it is hereby agreed by and between the parties hereto, that in the event that the [lessee] desires to transfer this lease and the [lessor] shall fail, or refuse to give his consent to the transfer, then each party hereto shall appoint one person and the two so appointed shall appoint a third party and whatever decision these three comes to shall be final.” Thereafter, by indorsements on the lease, Jaus assigned it to two parties of the name of Hoff, the Hoffs assigned it to Annette Mohr, and Mohr assigned it to Charles H. Powell and Maud Humfreville. Each of these successive assignees, or groups of assignees, took possession of the property immediately following the assignment to him or to them. Powell and Humfrcville commenced the present action for the purpose of recovering the sum of $750, alleged to have been paid by them to Annette Mohr as a consideration for her assignment to them. The recovery was sought on the ground of fraudulent misrepresentation. J. M. Erickson was the broker who negotiated the assignment and he was made a defendant under allegation that he was a party to the misrepresentation. Judgment went against both defendants for the amount prayed. Defendant Mohr alone appeals.

The trial court found that Erickson and appellant represented to respondents that appellant was the owner of the lease and could sell it. It was specially found as to appellant that she represented to respondents that she “was

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ready and able to transfer” the lease “free and clear of-any encumbrance and without any let or hindrance to the calm, quiet and peaceful enjoyment thereof.” It was also found that all these representations were false. Appellant contends that the findings mentioned were not supported.by the evidence. None of the successive assignments of the lease was consented to by Haas before it was made, but he in effect ratified the first assignment, that to the Hoffs, by a letter which he wrote soon after they took possession of the property. Appellant contends that this circumstance destroyed the legal effect of the clause of the lease requiring a consent of the lessor to assignments, although we need not decide whether it so operated, for respondents assume the correctness of appellant’s contention for the sake of argument and justify the findings as to misrepresentation upon other grounds. These grounds rest upon the following evidence: At the time appellant made the assignment to respondents there was a controversy between her and Haas upon the question whether she was in default in the payment of certain installments of her rent under the lease. The instrument provided that “if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the [lessor] to re-enter the said premises and remove all persons therefrom.” At the date of the assignment to respondents the controversy between appellant and Haas over the alleged past due rents had actually ripened into litigation, for he had before that time commenced in the superior court his action against her for the purpose of ejecting her from the demised premises because of the alleged nonpayment. Appellant knew that the action was pending, but during the negotiations leading up to the assignment she concealed the fact from respondents. Not only so, but she told them that “it was a good lease,” and that she had “a good lease of four or five years,” the lease on its face having in fact then over four years to run. The assignment was made September 2', 1919. With this latter fact in mind we quote from the testimony of respondent Humfreville: “Q. When was the first time you learned of that suit? A. The next morning after we paid her the money. . . . Q. That would be on the 3rd of September, would it? A. . . . Yes. . . . Q. How did you learn