
    LIQUIDATED DAMAGES FOR. BREACH OF COVENANT AGAINST RELEASING.
    Circuit Court of Hamilton County.
    George F. Fish et al v. John F. Robinson. 
    
    Decided, June 24, 1911.
    
      Lessor and Lessee — Covenant Against Releasing — Liquidated Damages —Remedy of Lessor in the Event of a Breach — Hearing of Testimony Unnecessary, When.
    
    
      1. Where the pleadings disclose all the facts, the introduction of evidence is unnecessary, and a judgment will not be reversed for refusal of the trial court to hear testimony as to the circumstances surrounding the parties at the time the contract was made.
    2. A stipulation in the lease of a theater for payment of $5,000 to the lessor as a forfeiture in case of the releasing of the property,'will not be regarded as ’a penalty, but. treated as an agreement for liquidated damages in that amount; and In case of violation of the stipulation the lessor may elect whether he will sue for the sum named as liquidated damages or for a forfeiture.
    3. An agreement between a lessee and one to whom he has surrendered possession of the property, that the lessee is to be saved from all losses and is to receive rent from said third party who is to pay all bills, does not establish a partnership between them but constitutes a renting to said third party.
    
      Kramer & Bettman, for plaintiffs in error.
    
      Sayler <& Sayler, eontra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
    
      
       Affirming Robinson v. Fish et al, 8 O. L. R., 520.
    
   By consideration of tbe trial court, defendant in error recovered a judgment upon the pleadings in the above case, to set aside which this action is brought.

The pleadings disclose that defenadnt in error, being the owner of an opera house building in Cincinnati, leased the same to plaintiffs in error by indenture of lease dated September 5, 1904, for a term ending on the 19th of June, 1907, at a rental valúe of $9,000 per year, the lease' containing a provision that plaintiffs in error should not sell, rent, transfer or assign said leased premises, or any part thereof, without the written consent of the said lessor, under a forfeiture of $5,000; that in pursuance of said contract of lease, said plaintiffs in error entered into possession of said premises under the terms of the lease, the same being for theatrical purposes; . that on December 26, 1906,. a few months prior to the expiration of said term, said plaintiffs in error executed a contract with one Canfield, by the terms of which Can-field assumed control of the property in question and was to pay rent for the same to plaintiffs in error, and thereafter under this contract Canfield conducted the theatrical business in said premises.

Plaintiffs in error complain that the judgment of the court below is wrong for the reasons:

1st. That evidence should have been introduced to show all the circumstances surrounding the parties at the time the contracts were made.

2d. That defendant in error waived the condition and covenant in the lease against renting, and estopped himself from enforcing said contract for the reason that after December 28, 1906, the date of the execution of the contract between Canfield and plaintiffs in error, he accepted rent under the lease with bnowlegde of the contract.

3d. That the provision against renting or assigning said lease is one for a forfeiture and not for liquidated damages; and

4th. That as a matter of fact there was no assignment of the .lease in question; but that the contract between plaintiffs in error and Canfield was that of a partnership.

We do not think any of these contentions of plaintiff in error are well taken. The pleadings themselves sufficiently set forth the facts existing under the lease and contract to Canfield, and what was done thereunder.

There was no waiver on the part of defendant in error of the covenant not to transfer the lease, as defendant in error would have the right to sue upon the covenant and recover the liquidated damages mentioned in the lease, or for a forfeiture under the terms of the lease.

Under the ease of Doan v. Rogan, 79 O. S., 372, the court is .of the opinion that the $5,000 mentioned in the lease as a forfeiture in case plaintiffs in error should assign or transfer the •lease, was the sum fixed and intended by the parties as liquidated damages for the breach of the contract of lease, and was not ^ penalty. This we gather from the entire instrument itself.

Plaintiffs in error further contend that the contract between them and Canfield was not an assignment of the lease in question but was only a contract of partnership between them. In this contention we can not agree with plaintiffs in error. Under this contract plaintiffs in error were to receive rent from Can-field for the balance of the term, but -not to be liable for any losses, and all bills were to be paid by Canfield; clearly the instrument shows that it was an assignment of the lease and not a contract of partnership.

The pleadings fully disclosing all the facts, the introduction of evidence was immaterial and unnecessary.

The judgment of the court below upon the motion for judgment, being correct, the same is affirmed.  