*38OPINION OP COURT.
The following is taken, verbatim, from the opinion.
SULLIVAN, PJ.It is charged that the judgment should he reversed because a certain lease was assigned and sub-let contrary to a provision to that effect, and that certain evidence of an incompetent nature was offered, under objection, as bearing upon the measure of damages for breach of contract, and further, that the court erred in overruling the motion for a new trial.
The written contract of May, 1923, in our judgment, according to the record, substantially embodied the terms upon which the lease was to be based and, in substance, comprised all the essential terms necessary for such a contract, and this bears upon one of the salient features of the case as to whether there were any terms yet to be understood, agreed upon and fulfilled, because whether such a situation existed, depended upon the plaintiff’s right to have a lease based upon the terms of the contract and in pursuance thereof. There was no inhibition in the terms of said contract against sub-letting or assigning the lease under the terms of the contract above noted, and while a penciled memoranda appears tending to that effect, it is our judgment, from the record, that it is not founded upon such authority as would be required to have a meeting of the minds,. and consequently is of no material avail in the record, on account of its vagueness and uncertainty. We think that the proof failed to show that theie was any understanding in the original contract that such terms were agreed upon or were to become part and parcel of the contract upon which the lease might be founded. Hence, we think there is no prejudicial error in this record, and the reason is that the terms of the contract had been substantially completed and without an express inhibition against subletting or assigning, claims based upon such propositions would be without foundation in law.
In Braunstein v. McCory Stores Corporation, 23 American Law Reports, 133, the syllabus reads:
“A lessee may assign his lease in the absence of express provision in the lease to the contrary.”
Evidence was offered to show the measure of damages by reason of the failure of Jones, the plaintiff below, to make a lease to Goodman on account of the fact that The James H. Herron Co. had leased to him direct, after the agreement for a lease made between Jones and Goodman, and the difference between the rent to be received and the annual value of the term, are proper considerations for a measure of damages, and the following authorities bear us out: Taylor v. Bradley, 39 N. Y. 129; 35 Corpus Juris, 1209; Neal v. Jefferson, 212 Mass. 517; Snodgrass v. Reynolds, 79 Ala. 452; Smith v. Hughey, 66 Ore. 134; Sloan v. Hart, 150 N. Car. 269.
It is argued that the prayer of the petition asked for the sum of $3,000 that therefore this disregarded the measure of damages, but the fact that the evidence was offered as to the measure of damages makes the subject matter of the prayer immaterial, not only as to the case at bar, but under the general rule that a prayer is no part of the allegations of the petition.
(Vickery and Levine, JJ., concur.)