United States v. Toulmin

253 F.2d 347, 102 U.S. App. D.C. 325

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 23, 1958
• Docket: No. 13704
• Status: Published

Opinions

WASHINGTON, Circuit Judge.

This is an appeal in a suit for damages by a tenant, based on a provision in a lease prohibiting the subletting or assigning thereof without the landlord’s consent, with the further provision that the. landlord would not withhold his consent unreasonably. After a full hearing on the merits, the District Court found that the landlord (defendant-appellee Toulmin) did not act unreasonably in declining to consent to the proposed sublease and proposed assignment, and gave judgment for appellees on this point.¹

We have reviewed the record and cannot say that the finding is clearly erroneous. The landlord acted on advice of counsel, who pointed out to him reasonable objections relating to both the proposed sub-lessee-assignee and to the terms of the proposed sub-lease and assignment. Under those terms the insolvent tenant would, until the lease term ended, retain legal title to, and not merely its right to be paid for, certain fixtures installed by the tenant. This is. not a case where a landlord has withheld his consent solely because of the-insolvency of the tenant, or where the-landlord was unreasonably attempting-to modify or revoke the original lease-terms relating to the fixtures. New contracts were drafted by the tenant and presented for the landlord’s approval'.. We cannot conclude that a reasonable-man was obliged to accept them in the circumstances: the uninterrupted use of the fixtures, which the landlord had' already partially paid for, was essential to the continued enjoyment of the property under the sub-lease and assignment, and. thus to the landlord’s receipt of rent.. The proposed retention by the then insolvent tenant of complete legal title, instead of its lesser equitable monetary interest, in the fixtures might well have-allowed the tenant’s creditors to interrupt or terminate that enjoyment and receipt of rent. Nor is there any evidence-to support a view that the landlord refused to sub-lease generally. The tenant did not propose any other sub-tenant nor did it offer to alter or omit the objectionable feature in the terms of the proposed', contracts.

We affirm the District Court’s judgment. In view of the disposition made of this issue, it is unnecessary to decide other points raised.

Affirmed.

1 . After the suit was filed the tenant — the original plaintiff — assigned its claim to the United States, which was duly substituted as tbe party plaintiff and is the appellant in this court.