
    The Van Sweringen Co. v. Miner et al.
    (Decided November 12, 1935.)
    
      Messrs. Boyd, Brooks S Wickham, for plaintiff in error.
    
      Messrs. Sayre, Vail & Dorn, for defendants in error.
   Levine, J.

Stanley and Mamie M. Miner began an action in the Common Pleas Court of Cuyahoga county against The Van Sweringen Company for rent. The petition sets forth two causes of action for rent, each cause of action comprising a separate period of time. The petition alleges that on or about March 12, 1926, they leased to The Van Sweringen Company certain described real estate for a period of ten years, at the rental of $5,715 per year. The first petition filed in this cause alleged that The Van Sweringen Company took the lease in the name of its agent, John Connell, who is named therein as a mere nominal lessee, as a matter of convenience, the defendant remaining the actual lessee, subject to all the liabilities, all the covenants, and entitled to all the benefits of the lease.

Further complaining of the defendant plaintiffs say that John Connell did not in effect assume the liabilities of tenant under such lease, and did not in effect become liable to these plaintiffs as lessors, but was in effect acting for and as agent of defendant, and that defendant as actual tenant did in effect assume the liabilities of tenant under the lease and is liable under the covenants of the lease to these plaintiffs as lessors.

This petition was verified by Stanley E. Miner, one of the plaintiffs. Later an amended petition was filed against The Van Sweringen Company, which was in the identical language of the original petition, except that it alleged that one more payment of rents had become due at that time, and prayer for judgment for this payment was included in the prayer of the petition.

The answer of The Van Sweringen Company to the first amended petition admitted that John Connell was acting as agent for The Van Sweringen Company, and then quoted the following provision of the lease:

“8. That the lessee may, at any time, assign said lease by a proper written instrument of assignment containing an assumption by the assignee of all the obligations of the lessee hereunder, which assignment shall be placed of record and whereupon the lessee shall be relieved of all responsibility or liability on account of this lease.”

The answer then alleges that on or about June 30, 1932, the lessee duly assigned the lease to The Boulevard Loop Realty Company, a corporation, by an instrument of assignment, by which The Boulevard Loop Realty Company assumed and agreed to pay all rents, taxes, assessments and other charges due and to become due thereafter, and to keep and perform all covenants, agreements and conditions of the lease upon the part of the lessee therein, and that the assignment was placed of record on June 30, 1932.

Thereafter Mamie M. and Stanley Miner filed a second amended petition, also verified by Stanley Miner, upon which trial was had. In this second amended petition it was alleged that the lease had been entered into with John Connell as principal, and that subsequent to the execution of the lease John Connell assigned the lease to The Van Sweringen Company. The case went to trial upon the question whether Connell was the lessee and assigned the lease to the defendant, The Van Sweringen Company, thereby obligating the defendant as assignee of the lease.

If it is true, as is claimed by counsel for Stanley and Mamie M. Miner, that the original lease was made with John Connell as principal, and that he thereafter assigned the lease to The Van Sweringen Company, the conclusion must follow that under the assignment the obligations contained in the lease, including payment of rent, would devolve upon the assignee, The Van Sweringen Company. On the other hand, if John Connell was not the principal, but was merely an agent or instrumentality employed by The Van Sweringen Company in the execution of the lease, the conclusion must follow that when John Connell assigned the lease he acted for and on behalf of The Van Sweringen Company, and that under provision eight of the lease heretofore referred to The Van Sweringen Company would be relieved of all further responsibility or liability on account of this lease.

Section 14 of the indenture of lease provides “that wherever the word ‘lessors’ and ‘lessees’ is used in the foregoing lease, it shall be held to accrue to the benefit of, and be binding upon, the aforesaid mentioned lessor and lessee and their respective heirs, executors, administrators, devisees and assigns.” This last mentioned provision makes it quite apparent that it was the intention of the parties to the lease that an assignment would in all probability be made, and that the assignee should succeed to the benefits as well as the burdens of the lease. We have reached the conclusion from all the evidence presented in this case that there can be no question whatsoever that John Connell, the person named as lessee in the lease, acted for and in behalf of The Van Sweringen Company. John Connell was a mere nominal lessee who was obligated and bound to follow the instructions of his principal. The mere fact that The Van Sweringen Company was not known in the transaction when the lease was executed does not in our opinion make any material difference. The fact is proven conclusively that The Van Sweringen Company was the principal in the transaction. Likewise the mere fact that John Connell did not know who his principal was does not alter the legal relationship between him and The Van Sweringen Company. When The Van Sweringen Company disclosed its identity it became an established fact that John Connell, the named lessee in the lease, was acting for this undisclosed principal who later turned out to be The Van Sweringen Company.

If an action were brought against John Connell for rent, he would present a complete defense by showing that he thereafter assigned the lease to The Boulevard Loop Realty Company. Since it is an established fact that he was merely an agent acting for The Van Sweringen Company in the execution of the lease, his later assignment of this lease to The Boulevard Loop Realty Company, with the consent and at the direction of The Van Sweringen Company, is construed in law to be the assignment of The Van Sweringen Company to The Boulevard Loop Realty Company.

In view of our findings it is ordered that the judgment of the Common Pleas Court be reversed and final judgment entered in favor of The Yan Sweringen Company.

Judgment reversed.

Lieghley, P. J., and Terrell, J., concur.  