Stillwell Hotel Co. v. Anderson

THOMPSON, J.

The following statement of facts, together with the preliminary observation concerning the effect of a failure to request permission to amend, is adopted from the opinion rendered by the District Court of Appeal:

“This is an appeal from a judgment entered in favor of respondent William H. Anderson, after order sustaining, without leave to amend, his demurrer on both general and special grounds to a second amended complaint against respondent and Business District Development Company, a corporation (hereinafter referred to as ‘the company’), wherein appellant sought to recover damages for eviction. The record fails to show that leave to amend was asked and refused between the dates of order and judgment, hence no error may be claimed in that respect; and appellant having declined to amend, must stand upon his pleading as against the demurrer on both its general and special grounds.

(Haddad

v.

McDowell,

213 Cal. 690 [3 Pac. (2d) 550].)

[465]

“Confining the statement of facts in the complaint to those pertinent and essential to the questions raised by the demurrer, it appears that the company was owner of certain real property and in 1925 had executed a deed of trust conveying the title thereto as security for an issue of bonds aggregating $600,000, permission to issue and sell said bonds having been granted by the state corporation commissioner. The trust deed provided that upon default in payment of interest or the principal of any bond, and request in writing signed by 25 per cent of the holders of outstanding bonds, the trustee might declare the.principal of all bonds due, and sell the property, issue its deed and divest the company, its successors and assigns of title and claim thereto. On January 15, 1926, the company conveyed the property to Citizens Trust and Savings Bank (hereinafter referred to as ‘the Bank’) subject to said deed of trust, and the Bank made its written agreement declaring that it held the property in trust for the company, and wherein it was provided that the Bank was to lease and sublease the same as directed by the company, the lessees to look only to the company as lessor, the company agreeing to perform in every particular any lease so executed. On October 20, 1926, the Bank, at request of the company, executed a written lease of portions of said real property to plaintiff for a term of thirty years, wherein it was provided (a) that plaintiff should pay as rent 66% of its net earnings from operation of said property and the building thereon as a hotel; (b) that plaintiff, lessee, absolved the Bank, as lessor, from any liability thereunder, and agreed to look to the company only for strict performance thereof; (c) that the company agreed to perform the provisions thereof in the same manner as if it were lessor therein; (d) that said lease was subject to the bond issue and deed of trust securing it, and ‘that lessor agreed not to permit any default to occur in the mortgage or trust deed securing said bonded indebtedness’; and (e) that the terms, covenants and conditions of said lease should be binding. on the parties, their heirs, successors, assigns and legal representatives. The company approved said lease in writing, wherein it agreed ‘to be bound by and carry out and perform and to guarantee the faithful performance of each and all of the terms, covenants and conditions contained in said lease to be kept and performed by the lessor’.