Butts Bros. v. Ennis

Atkinson, J.

The contract between Mrs. McCombs and Brown speaks of leasing real estate and hiring personal property. Whether the contract in so far as it relates to the tanks was one of “leasing” or “hiring,” Brown did not acquire the right to sublet without the assent of Mrs. McCombs. Civil Code, §§ 3691, 3485. As the plaintiffs’ basis of claim was under Brown, whether as tenant or bailee, it was incumbent upon them to show assent of Mrs. McCombs to their contract with Brown. This was a question of fact upon which, under the pleadings and evidence, the judge was authorized to find adversely to the plaintiffs. In the brief of counsel for the plaintiffs it was stated: “ Our contention is that the cohtraet between Butts and Brown was in no sense a subletting contract. The relation of landlord and tenant was not established as. to that. It was merely a sale by Brown to Butts of a franchise, a right which had no relation to the property leased by Brown from the owner.” , This contention is not supported by the record in the ease. The question' of notice to Ennis of the plaintiffs’ claim to the use of the tanks would be unimportant if his claim were not meritorious. The judge did not err in refusing the injunction.

Judgment affirmed.

All the Justices concur.