(dissenting).
I regret the necessity of dissenting in part from the conclusions reached by the majority. On the question, of the jurisdiction of the Municipal Court of Appeals I agree with Judge Clark that the law was correctly stated by Judge Hood for the Municipal Court of Appeals.
But it seems to me that the Municipal Court properly granted judgment non obstante veredicto for the appellant, who was defendant, and that the Municipal Court of Appeals accordingly erred in reversing and in directing the entry of judgment for appellees, the original plaintiffs. My disagreement is in regard to the law of the case, not the facts. The evidence was sufficient to support a verdict resting upon the fact of an assignment of the lease to appellant, Sobel, and consent to such assignment by appellees, the lessors. But as a matter of law this did not create an obligation on Sobel to continue to pay rent for the full term of the lease and at the rate therein prescribed, after the lessors resumed possession and re-rented to another, though for a less amount.1 An assignee is liable by reason of privity of estate between himself and the lessor (Smith v. Pickford, 1936, 66 App.D.C. 206, 210, 85 F.2d 705, 709) and not because of privity of contract. The court below recognized this. Such privity of estate, and consequent liability, continues only so long as the right to possession continues in the assignee. Ibid. When the lessor re-enters and rents to another, this privity is at an end, and so is the liability. Lincoln Fireproof Warehouse Co. v. Greusel, 199 Wis. 428, 224 N.W. 98, 227 N.W. 6, 70 A.L.R. 1096. We do not have here privity of contract due to the relationship between landlord and tenant, or otherwise; so that the cases relied upon by the Municipal Court of Appeals, except Tyler Commercial College v. Stapleton, 33 Okl. 305, 125 P. 443, 42 L.R.A.,N.S., 162, with which I disagree, are inapplicable.2
The agreement to pay $260 per month for two years was not the agreement of appellant and he should not be held liable as if it were. The original lessee defaulted and the new tenant, after Sobel’s period of occupancy as assignee, secured the premises for $150 per month. It should not avail appellees to argue in this court that there was a contractual assumption by Sobel of the obligations of the lease. As the court below said, “appellant did not attempt to predicate liability of Sobel upon any agreement between Sobel and themselves, but rather upon the claim that Sobel was assignee of the lease given to Junsch” —one of the original lessees. This was the theory of the complaint and, so far as appears, of the trial. The case made, therefore, was one of privity of estate, not of contract. Therefore the opinion of the court below on rehearing, in relying upon the rule fixing the liability of a tenant for the amount called for by a lease, notwithstanding entry and reletting by the landlord, is misplaced; for in such cases privity of contract exists between the landlord and tenant.
. The circumstance that appellant would not surrender the key unless he obtained a release of all liability is a non sequitur. The fact that he did not succeed in his effort to bargain a release does not fix liability upon him which otherwise is not there.