Wilson v. Gerhardt

Elbert, J. We cannot notice the alleged error touching the admission of oral testimony affecting the terms of the lease or the assignment, as the evidence is not preserved in the bill of exceptions. It appears, however, that the court below regarded the written assent of the plaintiff to the assignment of the lease by the defendantGerhardt as discharging him from his liability to pay [587] rent in accordance with his covenants in the lease, and judgment was rendered for the defendant upon this view of the law. This was error. There is no such intention expressed in the writing, and a release is not to be implied from the mere fact of assent to the assignment. A lessee who assigns his lease does not thereby discharge himself of his obligation under it. He remains liable upon his express covenants to pay rent in an action by the lessor, even if the lessor has accepted the assignee as his tenant, and collected rent from him. Tayl. Landl & Ten. § 438; Wood, Landl. & Ten. §§ 305, 350; 1 Washb. RealProp. *326. The judgment of the court below must he reversed and the cause remanded. Reversed.