
    NO. 8133
    WIDOW CHAS. J. PAYNE VS JOSEPH LEE RHODES.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
    
      
    
   opimos.

By Ms

Honor John st. Paul.

Plaintiff suss for three months rent, which she paid and now seeks to recover from defendant upon an agreement whereby ^he was to take over her le.ase on certain premises and pay the rent in her place and stead, i'he evidence shows that plaintiff herself was only a sub-lessee, who had subleased from the tenant in ohief, with the consent of the landlord* the original lease containing a stipulation by which said tenant in ohief was not to sublease without the landlord's consent. As the tenant in ohief had no right to sublease, it is clear that his own subleases has in turn no suoh right; for no one can transfer to another any greater right than he himself has. As the landlord refused to sanction the sublease between plaintiff and defendant it follows that plaintiff.was not in position to deliver possession of the leased premises and hence could not carry out her part of the agreement. Hence defendant is discharged from his obligations thereunder.

II.

Plaintiff further sues for certain sums at the rate of $6 per day, being liquidated damages for failure to complete and deliver a certain building by a certain day. "here is neither allegation or proof that defendant was ever put in default, and under the jurisprudence of the Supreme Court, os well ae that of this court (before the advent of the present Tiritar thereon), failure to complete a building by a given day is a passive breach of contract, for which damages feven though liquidated) cannot be recovered until after a formal putting in default. Godchaux vs Hyde, 126 La 187; People's Homestead vs Staub, 3 Orleans Appeals 93.

Por the present we hold ourselves bound by this jurisprudence. But, speaking for himself, the writer considered those two esses erroneously decided, and that they should he overruled. Por it has been held repeatedly that actual delivo-ry of defective machinory or buildings was an active breach of the contract, rendering a formal putting in default unnecessary. See Cable vs Leeds, 6 An 2931; Levy vs Schwartz, 34 An 209; Burt vs Laplace, 46 An 722; Payne vs Joubert vs Rent Lumber Co, 110 Ia 750.

And it is inconceivable that one who motes no attempt whatever to deliver^» hnil-’ing or other construction, when in fact he Is not in a position to do so because it is incomplete or d.e ’ ctive, can be in -uny better position-Indeed it hat rone-t-'-’l; been held that no putting in dgfrult is naoesaary whan- it is «lean; that A$ would be a vain and uaalass thing to do ^Dear. ,&8dft-aem, oeyit id vana sen lnutllia terajtaada ," Saa Robelot vs Gentilly Terrace Co. 10 Orleans Appeals 237, and Milam-Morgan Co vs Atlantic Fruit Co. 12 Orleans Appeals 306; and the authorities therein oited» But wa ara not in a position to overrule the two oases first above oited and henoe must follow them for the present.

December 12th, 1921.

Ihe judgment appealed from is therefore affirmed»

Hew Orleans la,  