Lopizich v. Salter

SHAW, J.

Action brought to recover certain installments of rent alleged to be due plaintiffs from defendants under the terms of a lease and an assignment thereof, both made in writing.

The court found, in substance, that on April 4, 1912, R. H. Howell and C. T. Crowell, by written lease, let and demised to Charles E. Salter the premises therein described for a term'of five years, at a monthly rental of $225, and that the rent for the months of September, October, and November, 1915, remained due and unpaid; that on February 4, 1913, plaintiffs succeeded to all right, title, and interest of the lessors in and to said lease; that under the terms of the lease the lessee named therein entered into possession of the demised premises and continued to occupy the same and pay the rent until about November 1, 1913, at which time he, with the written consent of plaintiffs, as required by the terms of the lease, transferred the same to defendant Maier Brewing Company by an instrument in writing, as follows: “Por a valuable consideration, the undersigned lessee named in the foregoing lease, does hereby sell, assign and transfer the same to Maier Brewing Company, a corporation, and the said Maier Brewing Company hereby accepts said assignment, and hereby obligates itself upon said lease from and after November 1st, 1913,” which said instrument was duly subscribed by Salter and, with the lease, delivered to Maier Brewing Company, as assignee named therein, which, without causing its name to be subscribed thereto, accepted the same and thereupon entered into the possession and occupation of the premises and continued in possession and occupation thereof under said assignment until the thirty-first day of August, 1915, at which time, it having paid to plaintiffs all rent accruing to and including said date, sold, assigned, and transferred all its right, title, and interest in the lease to Ed Schultz, to whom it surrendered possession of the premises, and at the same time notified plaintiffs that the said Maier Brewing Company disclaimed all liability for the payment of any further rental under the terms of said lease which had been so trans

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ferred to it, and thereupon vacated the premises. As conclusions of law, based upon these findings, the court found that the plaintiffs were not entitled to recover anything from the Maier Brewing Company, in favor of which judgment followed, and from which plaintiffs prosecute this appeal.