Wellman

The action was brought by the assignee of the lessor for the recovery of rent upon an alleged lease of personal property, and judgment was for plaintiff. The written instrument under which defendant took possession and continued for some time in the use of said property was executed December 27, 1913. On September 15, 1914, Conroy assigned all his interest in said contract and in the property to a partnership composed of George H. Forster and Elmer Stoner, who in writing agreed to “assume all liability on the said contract or lease, agreeing to perform all the terms and conditions thereof as agreed to by M. J. Conroy.” Thereafter Forster and Stoner entered into possession of the property and continued to use it until April 24, 1915, when it was transferred to certain trustees for the benefit of the creditors of said Forster and Stoner. The contentions of appellant are two: First, that at the time of said assignment to the partnership the lessor released the lessee and accepted Forster and Stoner in his place, thereby creating a novation; and, second, .that the so-called lease was really a contract of sale, and that by virtue of an action in the superior court brought to. recover…