298 P. 77 | Cal. Ct. App. | 1931
By stipulation the appeals in these two actions have been submitted upon one set of briefs. The issues and findings in both cases are practically identical and it will only be necessary in this opinion to consider the appeal in the action numbered in this court 7694.
Appellant Woolner is the owner in fee of certain land upon which is located a producing oil-well. This well was originally leased by appellant to Federal Drilling Company for a period of twenty years with a covenant against assignment without the written consent of the lessor. The lease was subsequently assigned to respondent Johnson and his wife with appellant's written consent, it being expressly agreed that the assignees could not make an assignment of their interest without appellant's consent thereto in writing. During August and the early part of September, 1927, respondent Johnson was being pressed by numerous creditors and in an effort to raise money he opened negotiations with appellant to sell appellant his interest in the well covered by this lease and another well in which appellant had no interest. During these negotiations appellant made an offer to Johnson which the latter was unwilling to accept and thereupon appellant said to Johnson: "If you can get any better deal, go ahead and do it." Treating this statement as a consent to the assignment of the lease, Johnson sold and assigned his interest in the lease together with the other well to respondent Camp for $50,000; $10,000 in cash and twenty promissory notes for $2,000 each. The $10,000 was paid directly to Johnson and the notes were delivered to respondent Kleindienst, who was acting as attorney for both Camp and Johnson. This transaction was finally consummated about September 6 or 8, 1927, and about that time respondent Camp entered into possession and commenced *68 the operation of the wells. On September 13, 1927, appellant sent Camp a letter calling his attention to the provisions against assignment of the lease without his written consent, and notifying Camp that such consent in writing had not been given. Kleindienst, learning of appellant's objection to the assignment, thereupon determined for the protection of his client Camp, to hold Camp's promissory notes intact until the matter was satisfactorily adjusted.
Matters remained so until September 17, 1927, when appellant visited the property and there met Camp. On that occasion, according to Camp's testimony, appellant said to him: "Since I found out who you are and know you are responsible, it is all right. Don't pay any attention to that letter I wrote you." At the same time appellant arranged with Camp to take charge for him of the pumping of another well in the vicinity which had previously been handled for appellant by Johnson. Pursuant to his conversation with Camp, appellant notified Kleindienst that he was satisfied with the assignment to Camp and would execute a written consent to the assignment, and Kleindienst thereupon, deeming it safe to do so, turned over Camp's notes aggregating $18,000 to creditors of Johnson. A few days later appellant, again becoming dissatisfied for some reason, refused to execute a written consent to the assignment and notified all parties that he considered the lease at an end. Camp continued in the operation of the well and the oil therefrom was delivered to Standard Oil Company of California. Under the lease appellant was entitled to forty-five per cent of the proceeds and the lessee to the balance. Standard Oil Company of California accordingly paid forty-five per cent of the purchase price of the oil to appellant and commenced this action in interpleader to have it determined to whom the balance due for such oil should be paid.
We have ignored conflicts in the evidence in the above recital because the trial court based its findings on the facts herein stated. Judgment against appellant followed.
[1] That this judgment was justified by the facts as so found we think sufficiently appears. "The law is that where there is a clause in a lease that it shall not be assigned without previous written consent of the lessor, and this covenant is breached, the lessor has only the option to *69
forfeit the lease for such breach; the assignment is not void, but voidable only at the option of the lessor, which option he must exercise according to the law." (Buchanan v. Banta,
Appellant cites Biddle Boggs v. Merced Min. Co.,
Judgments affirmed.
Tyler, P.J., and Cashin, J., concurred. *71