Kelley v. Von Herberg , 184 Wash. 165 ( 1935 )

Disregarding entirely the issue discussed by the majority, upon which I express no opinion, still, very clearly, upon another ground the judgment of the trial court cannot be permitted to stand.

If we assume that the trial court was justified in reforming the lease, as he did, or, if the lease as originally written had contained the language which the respondents claim was agreed upon, still the lessee could not escape liability unless it appeared that "such conveyance or assignment shall have been made to carry into effect an absolute and bona fide sale of lessee's interest in said premises." The assignment of the lease, made but a month or two before default, when the financial difficulties were fully apparent, to a corporation without assets or financial ability, of which corporation the original lessee was the directing and managing head, practically the sole stockholder and the principal creditor, cannot be held to be an absolute and bona fide sale. The assignment was obviously made in bad faith for the sole purpose of escaping liability, and the lessee must be held to be still bound. DeLano v. Tennent, 138 Wn. 39,244 P. 273, 45 A.L.R. 766; Associated Oil Co. v. Seiberling RubberCo., 172 Wn. 204, 19 P.2d 940; Sheffield Co. v. R. Hoe Co., 173 Wn. 489, 23 P.2d 876; Wilson v. WashingtonConcrete Pipe Co., 178 Wn. 545, 35 P.2d 71.

I therefore concur in the results.

STEINERT, J., concurs with TOLMAN, J.