Levey v. Hockwald

KERRIGAN, J.

This is an action in unlawful detainer to have, among other things, a lease declared forfeited for the violation of a provision thereof forbidding subletting. The trial was held by the court sitting without a jury, and judgment was entered in favor of plaintiffs and against certain of the defendants for the amount of the rent unpaid. A forfeiture of the lease and possession of the premises were refused. The plaintiffs moved for a new trial, which was denied, and from the judgment and the order denying such motion this appeal is prosecuted.

November 16, 1903, A. Hockwald and the West Disinfecting Company, a corporation, by an instrument in writing became the lessees for a term of five years, commencing December 1, 1903, of the ground floor of a certain building, on Fillmore street in San Francisco. The lease contained .a provision against subletting the whole or any part of the prem

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ises. The sole question for decision is whether the evidence shows a subletting by the lessees or either of them. No evidence was introduced on behalf of the defendants.

In May, 1906, W. V. Bryan & Co. went into possession of a portion of the premises, fourteen and one-half feet by six and one-half feet in size, and conducted there a real estate and a railway handbook business. Bryan, a member of this concern, about this time was elected secretary of the West Disinfecting Company, and, as the record shows, it was then agreed by the directors that Mr. Bryan should occupy desk room on the premises in the company’s office and transact the company’s business, and for and in consideration of allowing him to transact his private business outside of the company’s business, Bryan was to pay one-half of the expense of a janitor, and telephone and gas bills whatever they might be from month to month. He received a salary from the West Disinfecting Company of $100 a month. From June 5 to September 5, 1906, a small portion of the premises, ten feet by five feet in size, was occupied by one D. Higdon. He carried on there the business of selling railroad and steamship tickets. He testified in substance as follows: “My arrangement with Mr. Hoekwald was that I could not take the place unless I gave him a commission on the business. That is what Mr. Hockwald said to me. I agreed to give him a