
    Robertson v. Fuller.
    Division B.
    Jan. 7, 1952.
    No. 38148
    (56 So. (2d) 74)
    L, Percy Quinn, for appellant.
    Harold C'o-x, for appellees.
   Alexander, J.

Proceedings in unlawful entry and detainer were instituted by appellant to procure possession of certain property occupied by appellees under lease by tbe former. Tbe lease by Bobertson was made to Fuller and Allen, as partners, wbo operated the property as tbe Bar-B-Qi Pit. It was dated March 3, 1948, and was for a term of five years.

Tbe basis of tbe action was tbe alleged assignment of tbe lease resulting in a vitiating breach of a covenant therein, and failure to refund premiums of insurance as required by tbe contract.

Subsequent to tbe lease Fuller acquired tbe interest of Allen and tbe former thereafter engaged one Clark with whom be continued tbe operation. Shortly thereafter tbe business was incorporated under tbe name of BarB-Q Pit, Inc. Fuller, Clark and tbe corporation were made defendants.

Among tbe pertinent provisions of tbe lease is a covenant against subletting without written consent, and we accept tbe view that, unless there is a waiver or consent by tbe lessor thereunto, this covenant of tbe lease was violated, resulting in a forfeiture thereof.

We dispose at tbe outset of tbe contention that tbe appellees were without authority to appropriate tbe existing name and “good will” of tbe business by incorporation thereunder. This is not a proceeding in which such contention is relevant or may appropriately be decided.

Tbe lessees were required under Paragraph 8 of their contract to expend $1,000 upon repairs and betterments. They expended in fact $7,373.03.

Paragraph 8 of tbe lease is as follows: “Tbe said parties of tbe second part agree to reimburse tbe party of tbe first part for all premiums of insurance on said property herein described when tbe said party of tbe first part shall present to tbe parties of tbe second part receipted bills showing tbe said premiums of insurance to have been duly paid. ’ ’

At tbe time tbe lease was executed there was insurance thereon in tbe sum of $6,000. Tbe next year it was raised to $9,000. Premiums on both policies were paid by the lessees. The testimony indicates that insurance in excess of the sum of $10,000 was not available upon the property as leased. Appellant agreed that in 1949 the sum of $9,000 was sufficient and satisfactory. Appellant, after certain improvements had been made by lessees, increased the insurance on the entire property to about $22,000, and the refusal of lessees to refund the full amount of the premium thereon is made a basis for declaring a forfeiture under Paragraph 8, Appellees offered to pay the premium upon a coverage of $10,000, which the record indicates was a maximum appraisal of the property as leased. Tender of such premium is made. We agree with the county judge who heard the cause without a jury that there was no breach of the lease contract in this respect.

In view of the fact that there was no written consent by the lessor to a subletting of the property, an examination of this assignment is required. As stated above, the courts have uniformly upheld such omission as a ground of forfeiture. However, appellees contend that the lessor had waived this requirement, and that by his knowledge and conduct is estopped to assert forfeiture. The record discloses that Robertson knew of Fuller’s purpose to buy out the interest of Allen, and upon being apprised of such purpose and the reasons •therefor, approved it and stated that “it was the thing to do.” When told of a further purpose of Fuller to take Clark into the business, the lessor said that “it was all right”, and that he “wanted to see me (Fuller) make some money.”

When the matter of incorporating the business was discussed with Robertson and the reasons for such course explained, he stated “That is a pretty good idea, a smart thing to do.” This was in August 1948. Thereafter, all the monthly rentals were paid, most of which by checks drawn by the corporation. Robertson accepted, endorsed and cashed or deposited these. Notice to vacate was given under date of June 7,1949, the bases for such action being set out as a violation of the subletting covenant, and the failure to pay the insurance upon the policy of approximately $22,000. Upon refusal to vacate, this action was instituted. This appeal is from a judgment of the circuit court which affirmed a judgment of the county court in favor of the defendants.

Although there is some denial by Robertson of the matters set out above showing knowledge, consent and waiver, we find that the county court was in no error in resolving this issue of fact in favor of the lessees. Adams v. Graham Stave & Heading Company, 160 Miss. 266, 135 So. 198; 51 C. J. S., Landlord and Tennant, Sec. 117, p. 703.

Affirmed.  