68 Colo. 316 | Colo. | 1920
delivered the opinion of the court.
Brown, executor, sued Hallett for rent, upon a lease from Anna Brown, deceased, to Hallett. The trial was to the court. The defendant had judgment.
There were no pleadings, the case being a-ppealed from justice of the peace. The lease in question was in ordinary form with the ordinary covenant to pay rent and not to sublet or assign without the consent of the lessor, but there was a rider as follows: “It is mutually agreed that the lessee may assign his interest in this lease to a corporation of which he is a member.” There was also an agreement that the covenants should be binding upon the heirs, executors, administrators and assigns of both parties.
At the trial the defendant was allowed to show that the purpose and intention of the lessee in taking the lease was for the use of a corporation to be formed; that the corpora
The lease was finally delivered May 27, 1915. On the next day the corporation was formed, accepted an assignment of the lease from Hallett, and went into immediate possession. Hallett, the lessee, was never in possession but was a member of the corporation.
The corporation paid the rent, performed all the duties of the tenant under the lease. In November, 1917, having become embarrassed, it went out of business and offered to surrender the lease to the lessor. The offer was refused and suit was brought against Hallett for rent.
The defendant relies upon three defenses but we need consider only the third which was, that all of the circumstances leading to and attending the execution of the lease, taken with the course of dealings after the assignment effect and prove a surrender of the lease and term by Hallett and a substitution of the assignee as tenant, so that he is no longer chargeable.
It is very true that the assignment of a lease is not a surrender, and does not relieve the lessee from his covenant to pay rent even though rent be accepted from the assignee (Jones v. Barnes, 45 Mo. App. 590, 593-4), but the question whether there was a surrender and a substitution of tenants and a release of the original lessee is one of fact, Golding v. Brennan, 183 Mass. 286, 289, 67 N. E. 239; Colton v. Gor
Since there were no special findings, we must assume that this question of fact was resolved by the court for defendant. The evidence was admissible for the purpose of showing this fact and consequently the judgment must be affirmed.
Garrigues, C. J., and Scott, J., concur.