Bush v. Bastian

MARKS, J.

Respondent was the owner of a bungalow court in the city of Los Angeles. On or about September 1, 1923, she entered into a written lease of this property with the defendant Mary Bastían. The term of the lease was for five years at the monthly rental of $315, payable in advance on the first day of each month. On or about November 19, 1923, Mary Bastían assigned the lease to Mrs. H. K. Herbert, the appellant. The following allegation appears in the complaint concerning this assignment:

“That on or about the 19th day of November, 1923, the said defendant, Mary Bastían, assigned said lease to the defendant, Mrs. H. K. Herbert, with the express stipulation that she, the said Mary Bastían, would continue to be bound by all of the terms of said lease; that pursuant to said assignment, the said defendant, Mrs. H. K. Herbert, went into possession and occupation of said premises.”

Nowhere in the complaint is it alleged that the appellant agreed to assume the obligations of the lease or to pay the rent therein reserved. It was merely a naked assignment. It is alleged in the complaint that on or about February 10, 1925, both defendants vacated and abandoned the leased premises. Respondent brought this action to recover the unpaid rent. It is alleged that $185 rental was unpaid for the month of December, 1924, and that all the subsequent rentals were unpaid by the defendants. Respondent, however, succeeded in leasing the premises at a reduced rental which she credited on the account claimed to be due from the defendants. Mary Bastían filed an answer, but Mrs. H. K. Herbert did not appear and her default was entered. The case went to trial upon the issues presented by the

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complaint and the answer of Mary Bastían. Judgment was entered in' favor of respondent and against both defendants in the sum of $5,004.77. Mrs. Herbert prosecutes this appeal on the judgment-roll alone and maintains that as the complaint failed to state a cause of action against her the judgment cannot be sustained.

It is evident from the complaint that no privity of contract existed between respondent and appellant, their relations being limited to a privity of estate as the appellant did not agree to assume the obligations of the lease or to pay the rent. It is said in 15 Cal. Jur. 753: “Privity of contract between landlord and lessee, however, is not affected by the latter’s assignment, but continues until the end of the term notwithstanding he is no longer in possession of the premises. In the absence of fresh contractual stipulation, there is no privity of contract between the assignee and the landlord. But the assignee may, by express stipulation to be bound by the covenants of the lease, create a privity of contract between himself and the landlord, which will also endure till the term expires. By virtue of such an agreement the assignee becomes liable upon and entitled to the benefit of all the covenants of the lease as such. It seems, however, that to establish privity of contract between landlord and assignee, the necessary agreement must be made between them themselves. It is not sufficient that the assignee should have promised his assignor to perform the covenants of the lease. Such a promise is enforceable only by the original lessee.”