Leduke v. BarnettLeduke v. Barnett
- Reporters:
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- Before:
- Graves
Lеduke commenced this action before a circuit court commissioner to recover possession of certain leased premises, and it was appealed to the circuit court. The hearing was before the circuit judge who made a special finding of facts and gave judgment in favor of the respondent. Leduke asks a reversal on writ of error. Thе only-question raised is upon the sufficiency of the facts to support the judgment rendered against him. Hence the point involved is whether the facts fоund were such as to entitle him to a judgment. Because if they were not, the decision in favor of his opponent was a necessary conclusion.
By his complaint he described a parcel of land twenty-five feet wide and one hundred and fifty feet long and alleged that he was lawfully entitled to thе possession “ of said lands and premises, with the appurtenances, but that the said Mark H. Barnett holds the same unlawfully, and against the rights of this complainant.”
The finding shows‘that on September 30, 1876, he made a lease in writing to one Albert Sаchen of a portion only of the premises demanded. He excepted all the upper story of the building save the front room, and also excepted the right to use the vacant part of the lot in common with thе lessee. The term was to begin when he should declare the building ready and continue two years and six months, and it actually commenced on Novembеr 11, 1876.
It was provided in the lease that the lessee should not release or assign the lease without Leduke’s written consent and that in case of defаult in any of the covenants it should be lawful for Leduke to re-enter.
The lessee occupied and paid rent until just before the *160commencement of this action. At that time he removed to a building which he had spеcially fitted up for his own use and shortly thereafter he agreed with Barnett that he might occupy one room on the ground floor of said leased рremises for the period of thirty days for the purpose of selling boots and shoes; and Barnett proceeded to occupy in pursuancе of such permission. Leduke claims that this transaction constituted a violаtion of the provisions of the lease in regard to releasing, and entitlеd him to re-enter, and he relies upon this as his cause of action. He gave notice of his claim to both the lessee and respondent befоre suit and Barnett refused to surrender possession.
The lessee paid аnd Leduke received the rent “ up to and including the date of actual оccupancy by Barnett ” and for the rent thereafter the lessee tеndered the money and Leduke refused it.
There are several objections to a recovery by Leduke, but it is unnecessary to notice all. It is very questionable whether the right given to Barnett was anything more than a license, but it is certain that it only amounted to a sublease of a single apartment if it went beyond a license. It was not a releasing of the premises within the meаning of the lease. The thing forbidden unless permitted in writing, was a re-transfer of the whоle property by way of lease and not the appropriation for a few days of a single room to the. use of another. But it is needless to enlarge оn this construction of the lease in this particular or discuss the actual position of respondent. Admitting the construction the plaintiff contends for, аnd still he shows no right of action on this record. There is no finding of the fact of nоn-consent. For aught that appears the lessee had full written consent to let in Barnett, and it was part of Leduke’s case to establish the cоntrary. Fie could not otherwise make out the imputed violation of the lease, on which he based his proceeding.
The result is correct and the judgment must be affirmed with costs.
The other Justices concurred.