Moreira v. Heckman

StPaul, J. This is a su£t to annul a lease and dispossess a tenant on the ground that, contrary to the provisions thereof lie had assigned the sane without the consent of the lessor; and had otherwise violated vthe lease by subleasing and talcing in boarders, lodgers find roomers, 'whereas the premises had been rented only as a dwelling I The defendant offered to-prove the verbal consent of the lessor to the transfer, but the trial judge excluded the evidence on the ground that The lease forbade any transfer or sublease without the v/ritcon consent of the lessor. This evidence was improperly excluded, a prohibition against the tenant subleasing uniese the lessor yield his consent in writing, is clearly a stipulation in favor of the lessor alone, and of course he may waive it whenever he pleases to do so. And since there is no law which requires such waiver to be in writing, it fol'ov/s that the waiver may be oral and need no a even oe express. Hence iz nus uniformly been held tnau The mere acquiescence of the lessor in -che sublease rill suffice although The lease require hie written consent. Baudry-L-eantinerie, Louage ho. 1117 (Vol 18 p 589). And since a mere implied consent suffices, it follows t-.at express consent, orally ,„iven, suffices even more. 138 La. 980; 25 Lawrant 426, sec 219; 30 Dalloz Rep. 406, sec 475; Dalloz Code A...ote, Art 1717 No. 190; 13 Corp. Jur. 593-594, secs 609-611; 43 Barb. N.Y. 410; 51 N. Y. Sup. 1; 70 N. Y. Sup 211; 99 Atlantic 662; 169 Pacific 201. Of course the caso night oe dir*, crent that no sublease s', ou.ld cc ..ade \:it — out the \.r lessor’o agent since The principal may lixi'c as he pleases, xr-cugh h. ...ay not limiu his own where a lease provided lTWOii conneui of whe ;he powers of his age*.t It is urged ^..-Vo n re*., .nfi hereof v.oulc since the ©- idence so far nr duced shove ( iz i v.h-\-;e/er was given. ‘ ut t_.o nrs-p" i_.at is serve no wooc purpose s sme ) t.xit no consent , pli-.ihf’s , [532] evidence alone was heard and defendant1 s shut off "by the judge’s ruling. What that evidence may disclose remains yet to he seen, hut it should he heard. II Heretofore we have spoken only of a transfer or assignment of the lease, which differs from a sublease in this; that the transferee or assignee takes the place of the first tenant and pays rent direct to the -lessor, whilst the sublessee pays rent to the tenant v/ho in turn pays rent to the lessor. Here it is alleged that the transferee violated the lease by taking boarders and lodgers and roomers imto her home, thus violating the lease in two particulars, 1st. By changing the use of the premises which had been leased only as a dwelling, and 2nd. By subleasing without the lessor’s consent. Yfe see in all this no violation of the lease. 1st. A dwelling house is a place for the shelter and accomo-dation of human beings, thereby distinguishing it from a stable or storehouse or factory or commercial establishment; and a private dwelling differs from a public house, i. e. an inn or hotel in this, that it does not hold out as offering accomodation to the general public. But certainly a householder may admit into his house, and on whatever condition he chooses, -whomsoever he will, including boarders, lodgers and roomers; nor does his home thereby cease to be his private dwelling. 10 Orleans App 284; 33 Orl App 343; 55 N.Y.Sup 517; 62 Atlantic 136; 8 S.W. Rep 245. 2nd, In the answer it is admitted that the transferee “accomo-dated some of her friends by renting'part of the premises in question; but that she did not hole herself out as renting, nor did -she rent/t^»^ to the general public". As the only evidence on this subject was the above admission, v.c take it tha; "part of the premises" mean the* Sthie thing as "rooms". And v:c think thutYihe renting of rooms in a house of which the tenant hd í ousehol- er retains the siiperentendence as a whole is not a sublease within the meaning of a clause forbidding a sublease without the consent of the lessor. Por delivery to the lessee is of the essence of a lease or eu-leaso (C.C, 2692 hos, 1 and 3); in other words the thing leased [533] must be surrendered to the personal custody and control of the lessee. And indeed it is against this very surrender of the custody and sunerentendence of the thing».2>dttsed that the lessor means to provide and nothing more; otherwia,e.x»íd4&l, rupee does it make to him whether the members of my family or household do or do not pay for the accomo-dations they receive. The judgment appealed from is therefore reversed, and it is now ordered that this cause be remanded to be proceeded with in accordance with the views herein expressed and according to law; plaintiff and appellee to pay the costs of this appeal and all other costs to await final judgment herein.