
    Case 31 — PETITION EQUITY and PETITION ORDINARY
    April 21.
    Hill v. Rudd. Shircliff v. Same.
    APPEAL FROM DAVIESS CIRCUIT COURT.
    1. Contract — Cancellation of Lease. — Where one of several lessors who had agreed to buy groceries to a certain amount from the lessee as an inducement to his leasing the property, failed to comply with agreement, it is not a good ground for the cancellation of the lease.
    2. Same. — Where it is provided in a lease that the premises are not to he sublet without the written consent of the lessors, the fact that they will not give such consent is not ground for the cancellation of the lease.
    3. Action for Rent — Subletting.—Where a lease provides that the premises are not to be sublet without the written consent of the lessors, it is no defense to an action on the lease for rent, that they refused to agree in writing that the premises might be sublet.
    4. Practice — Objections Waived. — Where one brings a suit “as agent” without disclosing the nature of his agency and for whom he i.s acting, and the defendant neither files special demurrer nor objects to tbe same in his answer, all objections thereto are waived.
    HILL & HILL for appellants.
    1. A receiver, trustee or 'Other like fiduciary, should allege both in the caption and in the body of tbe petition tbe character in which he sues. (Newman on Pleadings, p. 291.)
    '2. A covenant in a lease not to assign the lease will not preclude the right of subletting or under-leasing; nor will a covenant in a lease not'to underlease or sublet, preclude the right to assign lease. (Lynde v. Hough, 27 Barb., 415; Taylor on Landlord and Tenant, vol. 1, p. 480.)
    3. When the implied covenant 'in the lease of quiet enjoyment is broken, tbe obligation to pay rent is without consideration, and the lessor can not recover. (Byard v. Garner, 68 Am. Dec., 105.)
    
      WILFRED CARICO for appellee.
    1. Appellee had a might to eonitract as to the nature of the business «that should be carried on in his house, and 'that (the house should not be sublet without his consent in writing.
    2. Admitting the (distinction between subletting the premises and assigning the lease, if appellant had the right to assign the lease then appellee’s threat of litigation would have been fruitless, and, ■consequently, could have furnished no ground's for the cancellation of the lease.
   JUDGE PAYNTER

delivered the opinion oe the court.

These cases are heard together, hut they are not consolidated, and were heard in the court below.

Wm. Rudd, agent, leased to Shircliff a business house in Owensboro, Ky., for a period of three years, for the sum of $500 per annum, payable in monthly installments. The appellant, R. G. Hill, signed the contract of lease as Shircliff’s surety. After occupying the house for a few months as a grocery store Shircliff was unable to carry on the business, and made a contract with others by which he sublet the house for a grocery store. By the terms of the lease he was not authorized to “under-lease the property without the written consent of the said Rudd.”

Shircliff brought the action against Wm. Rudd and others to cancel the lease because, as he alleges, Wm. Rudd in leasing the property was acting for “J. C. Rudd, his wife and children, who are the owners of the storehouse rented to the plaintiff,” and that in order to “induce the plaintiff to rent said house the defendant, J. G. Rudd, promise^ and agreed to purchase groceries, etc., from the store of this plaintiff” which would amount to $100 per month; that the purchase of groceries from the store amounted to about $8 during a period of live months.

It is further alleged that Wm. Rudd’s refusal to give his written consent to tbe subletting of the property wa.s “an unlawful abuse of the provisions of said contract requiring said defendant (Wm. Rudd’s), written consent to a subletting” of the property; that by reason of the facts alleged he had been damaged $300 and released from the obligations of the lease.

The allegations of the petition are taken as true on demurrer. Wm. Rudd was acting as agent for J. C. Rudd, his wife and children. If, as such agent, he had agreed to buy certain groceries from the plaintiff, his failure to do so would not have been ground for cancelling the lease. That, however, is not the state of case presented by the petition. It is alleged that J. C. Rudd, in order to induce plaintiff to rent the storehouse, agreed to purchase the groceries. J. C. Rudd’s contract to purchase groceries could not affect the rights of J. C. Rudd’s wife and children, for ■whose benefit in part the contract of lease was made, as they were part owners of the property.

Plaintiff can not in law complain that Wm. Rudd did not give written consent to the subletting of the premises, because by the contract he retained control of the matter of subletting by providing it could only be done by his written consent.

The court did not err in sustaining the demurrer to. the petition of Shircliff.

Wm. Rudd, agent, brought suit against Hill as Shircliff’s surety for certain months’ rent of the storehouse. The lease says have rented of “Wm. M. Rudd, agent, store, building,” etc. It does not state for whom he is acting as agent. In the caption of the petition the plaintiff is “Wm. M. Rudd, agent,” but the petition does not disclose the names of the parties for whom he is acting as agent.

A general demurrer was filed to the petition hut was never acted upon. An answer was filed. No- special demurrer was filed to the petition, neither did the answer make any objection to it. If any objections could have been made by a special demurrer or by the answer they were waived. A general demurrer was sustained to the answer. The answer simply seeks to avoid a recovery by alleging that the parties to whom Sliircliff sublet the premises would not take it, because Rudd would not give his consent thereto in writing, and the threat of litigation in the event it was sublet without such consent. The lease, as heretofore stated, provided the property could only be sublet by the written consent of Rudd. The answer presented no defense to the action.

It is not necessary to discuss the question as to the right of Shircliif to have assigned the lease without the written consent of Rudd, or the rights generally of tenants to sublet the leased premises or to assign the lease, or to state the distinction between assigning a lease and subletting the premises. Although Rudd asserted that Shircliif, under the contract, had no right to assign the lease or sublet the premises without his written consent, although his opinion was erroneous as to his right to prevent an assignment of the lease or the subletting of the premises, this would not release Hill from his liability on the contract.

The judgments are affirmed.  