Randol v. Tatum

Citations

• 98 Cal. 390
• 33 P. 433
• 1893 Cal. LEXIS 932

Syllabus

<p>Landlord and Tenant—Bond to Secure Bent—Discharge of Sureties — Tender by Assignee without Deposit—Breach of Covenant not to Assign.—The sureties upon a bond, given by a lessee to secure the payment of rent are discharged by a tender of rent by an assignee of the term, although such rent was not deposited in compliance with the provisions of section 1500 of the Civil Code, and notwithstanding the assignment was made in violation of a covenant not to assign the lease without the written consent of the lessor.</p> <p>Id__-Waiver of Forfeiture of Lease—Acceptance of Bent from Person not Owner of Term.—The forfeiture of a lease for breach of a condition not to assign the lease without the written consent of the lessor is waived by the acceptance of rent, eo nomine, from any one after knowledge of an assignment of the term without the lessor’s consent, though the ownership of the term is disputed, and the rent is paid by one in possession who is not the real owner_of the term.</p> <p>Id.—Affirmance of Lease after Assignment—Action against Sureties.— The lessor affirms the continuance of the lease by bringing a suit to recover rents which accrued under it, after an assignment made to a second assignee without his consent, and cannot claim that such second assignee acquired nothing by its assignment.</p> <p>Id.—Breach of Condition and Covenant not to Assign—Bight of Lessor — Option to Forfeit Lease—Effect of Assignment. — Where an assignment without written consent of the lessor is a breach both of a condition and of a covenant not to assign, the lessor has only the option to forfeit the lease for breach of the condition, and has not the option of declaring the assignment void. An assignment in violation of the covenant is not void, and does not avoid the lease, but passes the term, and the only remedy for such violation is an action for breach of the covenant.</p> <p>Id.—Offer of Performance—Exoneration of Surety—Construction of Code—Deposit no Part of Offer.—Under sec