Cuesta v. Goldsmith

ON MOTION TOR REHEARING.

Powell, J.

We have carefully examined the motion for rehearing and the brief of counsel submitted therewith. This is a court for the correction of errors committed in certain trial courts, but, since courts of review are not infallible, it will always be our pleasure to correct our own errors ás cheerfully as we would those committed by our brethren of the trial bench. In.this ease, however, we are satisfied that the decision announced is correct, and that able counsel has merely misconceived the scope and meaning of what was announced. He conceives the opinion to mean that a substitution of tenants in the case of subletting can 'only arise by express agreement. We do not think that, when it is taken as a whole, the opinion is subject to this construction; but to remove all doubt, let it be clearly understood that we recognize that a contract of substitution may he created, as any other similar contract, by a mutual course of conduct indicating consent, as well as by express words. What course of conduct or what acts are sufficient to cause such contract to b'e implied is generally for the jury. In the case at bar the jury found the facts insufficient to imply the landlord’s assent, and since this court can not undertake the solution of prohlems of fact, we deemed it sufficient merely to mention that such a conflict of evidence did exist and that it had been determined in favor of the landlord. It is true that by refusing to reverse the trial court on account of the rejection of evidence tending to show constructive, notice of the sale from the tenant to the subtenant, we in effect held that only actual knowledge on the part of the landlord was relevant as tending to show his assent. We still think this is correct.

It is insisted that the court overlooked the fact that the trial judge charged the jury that a substitution would be implied between the parties, as a matter of law, upon proof of substantially the same facts which we have held would not necessarily effectuate that result. It is further insisted that since the defendant made no exception to .this charge, it is therefore to be considered as the law of the case. The law of estoppel by res judicata does not extend so far. This doctrine only applies in cases of judgments, or rulings in the nature of a judgment, either interlocutory or final. We have examined the motion carefully, both as to the matters herein referred to and as to all other matters complained of, and we do not find it well taken. Judgment affirmed.