Louisville Gunning System v. Parks

Opinion op the Court by Judge Hobson Affirming. Thomas E. Parks owned two adjoining lots on Walnut street in the city of Louisville. On each of them was a house which he rented to a tenant. One of the houses extended out to the sidewalk, and was occupied by one Herbert, a tailor, as a tailor shop and residence. The other one set back from the sidewalk 25 feet, and was occupied by one Ramsey, a tenant, as a residence only. • The west wall of the Herbert house inclosed on the east tbfe Ramsey yard. The wall was partially covered with vines and flowers. Herbert, without the consent of Parks, leased the wall to the Louisville Cunning System for advertising purposes. It sent its painters, who tore down the [534] vines and flowers and painted on the wall a large sign advertising the Starr Dry Goods Company. This advertisement is his front yard was an offense to Ramsey, who complained to Parks. Parks demanded of the Louisville Gunning System that it should paint the sign out. This it refused to do, and he then had it painted out himself. It then instituted this action against him to recover $1,020 in damages for painting out the sign; $20 being for the original cost of painting it. He, by his answer, set up a counterclaim against it for $1,020 in damages for painting the sign on his wall without his consent; $20 being for the cost of painting out the sign. On the trial of the case, the court, in substance, instructed the jury to find for Parks the cost of painting out the sign. The jury found for him in the sum of $15. Judgment was entered on the verdict, and the Louis-, ville Gunning System appeals. Section 2292, Ky. St. 1903, is as follows: “Unless the landlord consents thereto in writing, every assignment, or transfer of his term or interest in the premises, or any portion thereof, by one who is a tenant at will or by sufferance, or who has a term less than two years, shall operate a forfeiture to the landlord, who after having given the occupant ten days, written notice to quit, may re-enter and take possession, or may, by .writ of forcible entry or detainer, or the proper procedure,, recover possession of the premises from any occupant thereof, whoever he or she may be.” . The lease to Herbert was a renting by the month, and under it he had a term less than two years. The lease by him to the Louisville Gunning System of the wall for advertising purposes was a transfer by him of an interest in the premises or a portion of it, and, [535] being made without the consent of the landlord, operated as a forfeiture to the landlord by the terms of the statute. The purpose of the statute is to forbid such a transfer by the tenant without the consent of the landlord. The transfer; being forbidden by the statute, is void, as to the landlord unless he consents to it. Of course, his consent may be given at the time, or it may be given afterward; but, unless he consents, the sub-tenant obtains no rights against him. The lease by Herbert of the wall to the Louisville Gunning System conferred upon it no rights as against Parks, and he had the right to paint out the sign which it had placed upon the wall. The painting of the sign upon the wall by the Louisville Gunning System •being unlawful, it became liable to Parks for the damages he thereby sustained. Judgment affirmed.