Weber v. Van Blerck Motor Co.

Kuhn, J. (after stating the facts). It is the claim of the defendant that there was no assignment of the lease, and that, according to the understanding between the defendant company and Mr. Van Blerck, they were simply to occupy the premises from month to month until such time as better quarters were found. There is no question with reference to the rule of law that, where an assignment is absolute and for the entire term, the assignee succeeds to all the rights and liabilities of the original lessee (Damnstaetter v. Hoffman, 120 Mich. 48 [78 N. W. 1014], and authorities therein cited); and, further, that, if an assignee has entered under an assignment and occupied the premises,- the relationship of landlord and tenant is created between the owner and assignee if the owner has recognized the assignee as his tenant by the accepting of rent, or otherwise, notwithstanding that the assignment was in direct violation of the terms of the lease. See note to Field v. Copping, 36 L. R. A. (N. S.) 488. The troublesome question about the situation here presented, however, is whether or not it can be said that the questions whether an assignment was actually made, and, further, whether it was consented to by the plaintiff, were not questions of fact upon this record, which should have been submitted to the jury. It is denied by Mr. Haggerty, the officer of the defendant company, that an absolute assignment was [452] made. He said that the occupancy by the company was simply a temporary arrangement made between it and Mr. Van Blerck, and color is given to this claim by the testimony of Thomas M. Weber, son of the plaintiff, who looked after the rents for the plaintiff, and who said that he never knew anybody other than Mr. Van Blerck in the matter of rents, and that no distinction was made between Joseph Van Blerck personally and the Van Blerck Motor Company, and that the bills for the rent, even just prior to the evacuation by the defendant, were sent to Mr. Van Blerck personally. We are of the opinion that these questions, as to whether or not there was a good and valid assignment, and as to whether or not Mr. Weber assumed there was such an assignment and waived the requirement of the lease prohibiting such an assignment by accepting the checks of the Van Blerck Motor Company, were, upon the record here made, questions of fact for the jury, and should have been submitted to them. The case will therefore be reversed, and a new trial granted. Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.