Bedford Investment Co. v. Folb

WILSON, J. Respondent leased business property in Los Angeles to appellants by a written instrument dated October 17, 1945, the original draft of which contained a provision that the lessees should not assign the lease nor sublet any part of the premises without the lessor's written consent. Appellants objected to that provision as being too restrictive and to satisfy their objection the following words were added: “Lessor shall not arbitrarily withhold approval.” As so amended the lease was signed by lessor and lessees.

In April, 1946, appellants sublet a part of the premises to defendants Farrell and Rios after having requested but without having received respondent’s consent. Appellants contend that the withholding of the lessor’s consent was arbitrary and in violation of the lease.

Respondent brought this action for unlawful detainer, after having served a notice of termination of the lease and notice to quit, on the ground that the sublease had been made without its consent. Judgment was in favor of respondent for possession of the premises and damages in the sum of $8.33 per day for each day after May 31, 1946, from which appellants have appealed.

[365]Appellant Alex Folb testified that on the day before he signed the sublease he had a conversation over the telephone with Pelton, business manager of respondent, in which he requested the lessor’s consent to the sublease and that Pelton refused to give his consent unless he received half of the profits that appellants were receiving from it. Pelton did not deny making that statement but testified merely that he did not recall such a conversation. A sublease of a portion of the premises to another party had been previously consented to by Pelton on behalf of respondent. Referring to another occasion when appellants desired to sublet a part of the building to be used as a liquor store, Pelton testified that he did not recall having made any objection thereto but that he had referred the matter to his attorney. Folb said that Pelton offered no objection. The tenants under the sublease in question are engaged in the upholstering and furniture repair business which would not appear to be any more objectionable than the liquor business.

Pelton was asked by appellants’ counsel on cross-examination “Did you object or have objection to the type of business they were running?” referring to the sublessees. The court sustained an objection to the question and the ruling is assigned as error. The evidence shows that before the sublessees moved into the premises appellants advised respondent as to who they were and the kind of business they intended to conduct. Pelton knew Farrell’s business through a conversation previously had between them. The question was proper for the purpose of showing whether the refusal to consent to the sublease was because of the character of their business or was an arbitrary rejection of appellants’ request. The court erred in sustaining the objection.