Bowen v. Haskell

Collins, J.

We pass by several questions discussed by counsel, and came directly to the consideration of a finding of fact to the effect that after the lease had been assigned to the re *482 spondent-Haskell by the original lessees, the lessors consenting, through their agent and attorney in fact, B. H. Hellen, said respondent sold and transferred all of his title and interest in the lease and in the leased premises to one Chambers, who then entered into possession; that said sale and transfer were duly and properly con sented to by the lessors, again acting through their agent and attorney; that they accepted Chambers as their tenant under the lease, in the place of respondent Haskell; that they collected the stipulated rental from Chambers for several months; that respondent never thereafter occupied the premises, and was not called upon to pay rent thereon. This finding, and the sufficiency of the evidence to support it, is not questioned by any of appellant’s assignments of error, although the admissibility of certain testimony relative to the sale and transfer by Haskell to Chambers is brought in question by the third assignment. But, even if the trial'court erred in its rulings respecting the admissibility of this testimony, — and of that hereafter, — we fail to see how appellant could be benefited, or how he could escape from the conclusive effect of such a finding.

When the original lessors voluntarily consented to an assignment of the lease by the original lessees to Haskell, the lessees were released, and the relation of landlord and tenant no longer existed between the parties. Again, when the original lessors consented to a sale and transfer of all rights and interest which Haskell had acquired under the lease, — an assignment of it, practically, — to Chambers, and accepted the latter as their tenant in lieu of Haskell, the relations which had theretofore existed between the latter and his landlords terminated. There was a surrender of the lease held by Haskell, by operation of law, arising from a condition of facts voluntarily assumed, incompatible with the existence of the relation of landlord and tenant between the parties. The landlords could not be permitted to hold both Haskell and Chambers as lessees; and the facts going to show that a lessor has given up a lessee, and has had nothing more to do with him, and has treated a new occupant as his lessee, may be established by parol. Levering v. Langley, 8 Minn. 107 , ( Gil. 82 ;) Woodf. Landl. & Ten. 496, 498.

Appellant’s counsel urges that because Haskell agreed, in writing, to pay the rent when the lease was assigned to him, he was some *483 thing more than a tenant by assignment. When executing the writing, Haskell formally assumed the liability, as to the payment of the agreed rental, of the original lessees; nothing more. He was in no sense a guarantor. No obligation rested upon the lessors to discharge and release either of these parties, but, having done so, they and this plaintiff, their assignee, are bound by their action.

The trial court did not err when making the rulings referred to in appellant’s third assignment. There was no effort made by respondents’ counsel to show by parol the contents of a written instrument. All of the questions objected to were propounded with a view of showing a fact only, — the fact that Haskell had assigned or transferred his leasehold interests.

Order affirmed.

Vanderburgh, J., took no part.

(Opinion published 55 N. W. Rep. 629 .)