
    HARRINGTON v. HALL.
    Lease — Assignment — Consent op Lessor — Lease to Third Party.
    
       Where a lease is nontransferable without the written assent of the lessor, and the lessees have transferred the lease and surrendered possession to the assignee, and the lessor has verbally assented to it, and has received advanced rent from the assignee through the lessees, and has rented the property to a third person, the assignee can recover the rent advanced.
    Error to Berrien; Coolidge, J.
    Submitted May 7, 1901.
    Decided May 21, 1901.
    
      Assumpsit by Lloyd B. Harrington against Charles W. Hall for money had and received. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Defendant, through his agent, one Whitman, leased to the firm of Morris & Simpson, copartners, a livery barn. The lease was nontransferable. Morris & Simpson sold theii; business to plaintiff. Plaintiff knew of the provisions of the lease. Whitman declined to receive the rent direct from plaintiff, but plaintiff paid it to Morris & Simpson, and Morris & Simpson paid it to Whitman, and it was thus paid from January 18th to April 3d. On the latter date plaintiff and Morris & Simpson went to Mr. Whitman, and, after some conversation, plaintiff paid $90, the amount of rent from that date to the expiration of the lease, to Morris & Simpson, taking their receipt-therefor, and Morris & Simpson paid the rent to Whitman, and took his receipt. There was evidence tending to show that Whitman raised no objection to the transaction so long as the rent was paid. Plaintiff testified that he subsequently met the defendant, told him what he had done, showed him the receipt, and asked him if he had received the money; that defendant replied it was all right. On April 7th defendant executed a written release to Morris & Simpson, releasing them from further covenants under the lease. He then refused to recognize any right of plaintiff to the premises, and leased them to another party. Plaintiff demanded the return of his $90, and, upon refusal, brought this suit.
    
      Weldon Bros., for appellant.
    
      Cady, Andrews & Murdoch, for appellee.
    
      
       Head-note by Grant, J.
    
   Grant, J.

(after stating the facts). This case was submitted to the jury upon the theory that, if Harrington paid the money to Morris & Simpson, and they turned it over to Whitman with the understanding that plaintiff was to occupy the premises, the defendant is liable. Defendant, Hall, was not sworn as a witness, and there is no contr&diction of plaintiff’s testimony that, after plaintiff had informed him what he had done, he assented to it. We think that, under the undisputed testimony in the case, plaintiff was entitled to recover. It is therefore unnecessary to discuss the alleged, errors. On the basis that it was a proper case for a jury, we find no error in the instructions or ruling of the judge.

Judgment affirmed.

The other Justices concurred.  