*1 Rogers 325 Nat. Bank Lovelock of First v. ROGERS FIRST NAT. BANK OF LOVELOCK No. 2766 September 6, 258 1927. P. 1024. Assignment oe Landlord and Tenant —Lessee's Sublessee's Binding though Latter, Held even Future Rent Not by I-Iim, Forfeited Assented to where Lessee Lease. “purchase” with lessee as to rental or Sublessee’s contract absolute, of anil of therefor held not furnishing pasture,-hence latter’s but conditional forfeiture of lease made his lessee’s previous assignment plaintiff of binding upon sublessee, future rent not sublessee’s although accepted order to future had lessee’s sublessee rent to Pay- Assignee 2. Landlord of Rent and Tenant — Sublessee’s Right Lessee, Hence Than No Greater Rent ments Has Forfeiture, Accruing After Lease Rents Could Not Collect rights, provided might “sell” Where lease from sublessee rent lessee's “purchaser” future of rights held not to entitle accruing after lessee’s such rentals sublessee collect forfeiture greater right being lease, assignee’s no his assignor’s having right. no such and latter C. J.-CXC. REFERENCES Assignments 185, p. 24; 150, p. 9G3, C. J. —5 sec. n. sec. (new). n. 1247, p. 380, n. G2 (new). C. J. sec. Tenant —3G Landlord and Appeal Court, Washoe District from Second Judicial Judge. Dunn, County; T. Frank National Bank of

Action the First Elizabeth A. H. Judg- being as defendants. another substituted appeal. Reversed. ment for dissenting.) J., (Ducker, Appellants: Goodman,

Booth B. assignor. Assignee position than cannot be in better reentry lessors, legal 1079. After 2 A. & E. Enc. assignee were terminated. rights and his of sublessee profits. having only persons Lessors are anticipated, earned, Assignments but are of knowledge of with full Bank took itself. contract assignor, rights and defendants’ limited subject to all Mortgagee takes of leasehold reenter. 50 Nev. Upon termination, mortgage conditions of lease. so far reversion, it affects sublet, it. falls with If lessee has Cyc. forfeiture terminates estate of sublessee. 24 *2 Woodburn, Respondents: Thatcher & Appellants urge agreement with Moffatt as to in it, was nature of lease of inor effect sublease from they and that are entitled to proceeds. extremely broad, This so. Lease is giving crops with to raise large property, crops, stock, encumber amount of etc. prior any sold forfeiture, receiving part payment, payable balance monthly; bank, agreeably benefits were Paragraph Moffatt. 19 of this contract has been before upheld. Rogers various Perez, Judge courts v. Farrington held Reservation had to sell stock, except live required keep such as lessee was upheld ranch. His decision was Circuit Court of Appeals Rogers of Ninth Perez, Circuit. v. 12 Fed. (2d ed.) 923.

That was not but of yet earned, strengthened plaintiff. claim of It shows purchase absolute sale. It was to become due that was assigned to bank. rights might

Plaintiff’s reentry have terminated with sublease, if this were but it was not. It was absolute sale pasture. Suppose promissory cattle had been sold and assigned. note taken and then Would not then be entitled to recover? Would defendants have in it whatsoever?

OPINION By Court, Sanders, C. J.: The First National Bank of brought suit H. Moffatt to recover the sum of $5,501.76. filed an admitting answer amount, indebtedness to some one in mentioned, Rogers First Nat. Bank of Lovelock alleged Rogers and Millie H. that Elizabeth A. money, to the and asked leave Jones also asserted claim pay and that into court be entered substituting Rogers Mrs. Mrs. Jones its stead. filing Simultaneously answer Mrs. intervention, Rogers petition a Mrs. Jones filed owing claiming was them directing Company. an order was Thereafter Company to court and that into substituted as Mrs. Mrs. Jones be place H. Upon in favor of the entered trial denying a judgment and an order From such appealed. trial, The new the defendants motion defendants, parties plaintiff will to as referred be trial court. law in give questions rise facts (cid:127) respect udgment j are as follows: July ranches leased their the defendants *3 acres, comprising 14,962 Pershing County, in about products, equip- together stock, grain, and with the live thereon, for term of to one Walter W. Akers ment July to years and five months from three and 30, 1926, at rent of including a stated November monthly payments equal $110,000, payable in advance in delivery Upon $2,750 the execution and each. corporation called Akers formed a lease operate the over and to take Land & Cattle corporation Upon organization Akers lease. lease, with manager, president and and was made its lessors, was approval and consent this Company. The contains lease provision:

“Except agreed, in paragraph otherwise this may, name, discretion, in and in his own his hay, grain, and or sell or all incumber incumber crops products other now said ranch or now during growing term or hereafter thereon thereon, and live marketable cattle harvested belonging range or stock now on said ranch now 328 50 NEV. during hereafter and the said term

to said ranch or * * * thereon. The lessee have raised buy right, discretion, and sell in his purchase additional live stock.” day March, 1924, the Com-

On the 31st Akers, president manager, pany, through while its premises, leased made to H. Moffatt following proposition, writing: acknowledge hereby receipt of the “Gentlemen: We $2,000, being advance on account of sum of you by undersigned, and we to be furnished hereby agree you follows: do covenant and

“(1) to not less You are to have the exclusive 1,350 alfalfa, Reserva- acres of field Valley, during tion ranch in Lovelock the season of your cattle, excepting alfalfa in for beef sections cutting, first from which we reserve the matur- ing grain harvested, now after before thereon you and new are to have the additional stubble * * * pasturage approximating 175 alfalfa acres. “ (3) agree charge, furnish, We additional without ample, you put on suitable water for all cattle which pasture, either in convenient to the ditches or corrals pasture, you may your discretion elect and direct.

“(5) agree keep good We all fences in a state of repair prevent escape of cattle.

“(6) per head, per month, You are to us for $2 pastured, excepting yearlings, each head of live stock price yearlings and the is and will be head. $1.50 you you We understand that estimate that will have yearlings pasture. about 70 head of “(7) All monthly. shall be The sum $2,000, already by us, received and herein acknowl- *4 edged, applied payment, payment shall be and no pasture paid be due until the for in advance has been consumed. place any

“You are hot to cattle in field until notified by you me, to do so privilege but are to have the op Bank First Nat. Lovelock any when, your opinion, removing field cattle from cattle, pasturage is insufficient to fatten and shall pasturage injured event remove the cattle before the pasturing.” by too close Company signed following memoran-

The Moffatt paper: “Approved and of the dum on bottom accepted.” May 3, 1924, made the the Reservation

On Company: following on the Moffatt order pay Bank of of First National “Please to the order moneys due under and all due or to become agreement in said within contract virtue $3,500, provided agreement until the full sum of with per per rate of 8 cent annum thereon at the paid.” hereof, shall have been from the date following signed memoran- The Moffatt “Accepted May 5, paper: dum on the bottom of 1924.” May 30, 1924, the Reservation provided in the rentals in the

default Akers, date, lease, on said and the lessors contract of Francisco, and lawyer’s the lessors officein San met in made demand Akers and there then comply and conditions of the terms with rentals frankly lease. Akers or surrender the lease nor the Reservation that neither he admitted lease. comply and conditions with the terms could admission, the Reservation Com- Notwithstanding this and additional May made a further pany, on Company, follows: you Francisco, Cal.—After San “H. Moffatt $3,500, thereon with interest the full sum have May 3, per annum cent at rate of Lovelock, Nev., in accord- Bank National First Land executed ance 1924, please pay May 3, to said Company on Cattle & moneys Nev., Lovelock, Bank of National First con- the within virtue of due under provided until agreement as in said tract *5 50 NEV. per $4,500, at the rate of 8 the full sum hereof, have been the date annum from cent paid.” signed following Company the memoran-

The Moffatt 31, “Accepted May paper: dum on the bottom 1924.” representative 1, 1924, a of the lessors took

On June premises property. possession of the leased duly 18, writing 1924, an instrument On June parties the and the Reservation Com- executed canceled, annulled, pany, lease contract was the terminated. knowledge that lessors had no

The evidence shows the Company and of the contract between pasture Company respect nor Moffatt the acceptances The orders and above set out. evidence controversy the that a arose between tends show Company the and the defendants as to Moffatt speci- Company’s the lands to continue to fied in after cancellation of the lease. the contract the controversy injunction suit This was settled brought by Company the the defend- performed proof The shows that the defendants ants. required and that the the services under the Company pasture upon the continued to use provided in until terms and conditions said contract end of season of 1924. October The Moffatt on said date became and $5,501.76. indebted for in the sum of 1924, 25, First National Bank of Lovelock October this Moffatt Com- commenced action to recover basing pany $5,501.76, its claim thereto amount of allegations complaint on March Company purchased of the Reserva- 1,350 tion to not less than exclusive acres Ranch” to be used “Reservation reservations, during 1924, subject the season conditions, payments appear from writ- parties, ten between said attached Bank First Nat. of Lovelock part complaint by proper reference, pasturing feeding that for the of the Moffatt cattle on the land described in the contract there became assignee, $5,501.76. and its sum of complaint part out as a on and sets thereof the orders acceptances by *6 their the Moffatt allegations decided and of trial court found the complaint judgment favor

the to be true rendered plaintiff for said amount. From the claiming appeal, the rendered the that so pasture subsequent the for- indebtedness accrued for to adjudged of the lease have been to be feiture should defendants, to the to the presented question for determination involves 1. The interpretation proper the docu construction of the we examine the contract ments above set forth. When Company the Moffatt the Reservation between perfectly Company whole, that it manifest is Company by to payments.to the the Moffatt be Company only the made as were to be pasture Company the fur indebted for Moffatt became Company agreed make to nished, and, when the Moffatt upon the payments, Reserva it was the condition the pasture in Company fulfilling its contract to furnish tion agree of its and conditions with the terms accordance words, reading contract with the whole ment. other Company’s con provisions together, Moffatt all its the pasture money due for the to the become tract to The Reservation conditional, not absolute. was dependent agreement ability was Company’s fulfill its to per upon lease, well as the -keeping upon alive its its the for agreement to furnish of its formance supply them to for the cattle season required in con perform water, services the pasture. The with the use of the nection fulfilling its itself disabled the owners lease and surrendered when forfeited its it by Moffatt the under the of the land 50 Nev. Consequently the balance June due for furnished subse become the legally recovered quent to that date could be by Company against the the action upon of the contract. the termination part plaintiff that, It contended provisions the lease Reserva under the buy right in tion had the its discretion and, lease, pasture during term of having use of to the the season Company, purchased been assignable chose action due become therefor assignee, eñtitled upon the contract due the fulfillment of become accep opinion are of We May 31, 1924, tance of the order of greater different claim no conferred possessed by plaintiff was-originally favor of the nothing assignor; and, was due the in as much as assignor the fulfillment of contract nothing plaintiff there was due the *7 May 31, Martyn under 1924. Western Ry. Co., App. Conceding Pac. 21 Cal. P. that the for the an assignable action, general chose in it is a that an rule maintain cannot action assignor chose action where his did not have such right. 41, p. 292; 2, p. 3 Cal. Jur. sec. J. sec. C. Conformably to this rule we hold court below rendering judgment plain erred in in favor of tiff. The is therefore reversed.

Coleman, J.: I concur.

Ducker, J., dissenting: my opinion, there was an absolute sale of the the to the Moffatt power which the lessee had the to make under express terms of the lease.