D'Ambrosio v. Nardone

Chadwick, J. Plaintiff was the lessee of a certain five-acre tract which was devoted to truck farming. He had a lease for a term of four years. He sold his “business and lease” to defendants, who went into possession and have paid four half-yearly rent payments, three to plaintiff and one to the original lessor. One of the covenants of the lease is that the lessee will not assign or sublet the property without the written consent of the lessor. Default being made in the payment of the note given in payment for the business and lease, this action was begun, and defendants have answered, pleading a failure of consideration in that plaintiff has never procured an assignment of the lease. The court found that the original lessor, who was a witness at the trial, had ratified the assignment by accepting an attornment from the defendants. The testimony is ample to justify this conclusion. There is some suggestion that the rent paid the original lessor was paid to his son who acted as his agent, and that his act has not been ratified. The lessor did not repudiate the conduct of his son when he was upon the stand in this case as a witness. He said that he was willing that the court should decide as to whether the lessee or these defendants were his tenants. This would estop him to deny the right of the defendants to attorn under the lease. The judgment of the lower court is affirmed. Crow, C. J., Parker, Gose, and Mount, JJ., concur.