Bernheimer v. Rezek

Per Curiam.

Appellant was sued as the assignee of a lease. He paid rent at the price stipulated in the lease for the time he actually occupied the premises. He denies that there ever was an assignment and contends that he is not liable for the rent for the term, under- the rule announced in Tibbals v. Iffland, 10 Wash. 451 , 39 Pac. 102 , and Harvard Inv. Co. v. Smith, 66 Wash. 429 , 119 Pac. 864 .

Whether appellant bought the business and the lease and assumed its obligations, is a question of fact. Two witnesses testified positively that a written assignment was made out, acknowledged formally and accepted by appellant. Another witness testified that appellant admitted to him that he had such an assignment. Appellant and his son testified that there was no such assignment.

The concomitant circumstances, that appellant and respondent husband negotiated for a new lease, and the payment by appellant of the stipulated rent for seven months— albeit he complained that the rent was too high — seem of equal weight. The trial judge might have decided the case *387 either way. Having decided in favor of respondents, we are not prepared to say that his findings are not sustained by a preponderance of the evidence, and the judgment is therefore affirmed.