Voss v. Levi
Before: James
Synopsis
Landlord and Tenant—Violation op Covenant Prohibiting Subletting—Acceptance op Rent prom Occupant—Guarantor op Original Lessee not Released.—Under the terms of a lease containing a covenant prohibiting the subletting of the demised premises without the written consent of the lessor, the guarantor of the lessee is not released from his contractual obligation, by the mere fact that a transfer of the business conducted on the demised premises was made, and that the lessor’s agent accepted the rental from the transferee and gave him receipts therefor in his own name, or by the fact that the lessor’s agent informed the occupant that he might move out if he desired, in the absence of a surrender of the premises and an acceptance thereof.
[672]
JAMES, J.
On the twenty-fourth day of January, 1911, one Trepte leased to the Diamond Carriage & Livery Company, a corporation, certain real property in the city of San Diego for a period of five years for a total rental of seven thousand five hundred dollars, which was made payable monthly in advance at the rate of $125 each month. The lease contained a term prohibiting subletting without the written consent of the lessor. Adolph Levi and J. E. Connell signed the lease as guarantors. On the twelfth day of June, 1913, Trepte assigned the lease to Voss, the plaintiff herein. The plaintiff was not a resident of the state, but was at all times material to this controversy represented by E. E. Selmser, who resided in the city of San Diego. The lessee company, by reason of nonpayment of state license tax, forfeited its charter on November 30, 1912. The stock of the company had theretofore been transferred to a firm called Davis & Crawford. Subsequent thereto Davis & Crawford transferred to Adolph Levi, and Edgar Levi and they in turn transferred to A. C. Griffith, who in turn transferred to one Morse. In September, 1914, Morse moved out and left the property vacant. The business during all of these times was conducted either under the name of “Diamond Carriage & Livery Company,” or “Diamond Carriage Company.” After the transfer of the lease by Trepte, the rent was paid to the agent of the plaintiff, who received checks from individuals occupying the premises and gave receipts to and in the names of such individuals. Morse had a conversation with Selmser, the agent of the plaintiff, prior to September, 1914, in which this agent informed. Morse that he could surrender the property at any time he desired, as more rental could be secured by the owner than was being paid under the lease. Morse testified that he asked for a reduction of rent, to which the agent would not consent, and was told that if he wanted to give up the premises he would be released. He further testified that he moved out, but after he moved out rent was demanded from him by Selmser. No rent was paid after the first day of September, 1914, and on about the 19th of January, 1915, Selmser, on behalf of plaintiff, took possession of the premises, made material changes in the building by having stalls taken out and a cement floor put in, all in preparation to change the use of the building from that
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