McNew v. Mulcahy

BARNARD, P. J.

This is an appeal from a judgment on the pleadings in an action for rent. The complaint alleges that the plaintiff was the owner of a described forty acres of land, in Kern County which he had leased to the defend

[657]

ant; that under a written lease between the parties the defendant had agreed to pay to the plaintiff $50 per acre in advance as and for rental for this land for the third year of the term thereof, which year commenced September 24, 1936; that the lease provided for the rental to be paid at Bakersfield; that the plaintiff had demanded payment; and that the defendant had failed and refused to pay. The answer admits that the defendant had leased the property under a written oil lease whereby he had agreed to pay the plaintiff $50 per acre in advance as and for rental for said land for the third year of the term, which year began September 24, 1936, “but in connection with such admission” further alleges that said lease by its terms provides “among other things the following:” Here the answer sets forth a copy of a clause of the lease which provides that in the event of a violation of any of the terms of the lease the lessor may, at his option, give ninety days’ written notice to the lessee whereupon the lease shall terminate except as to any wells then producing or being drilled, unless the lessee begins to remedy the matter in default within ninety days after such written notice, providing the lessee is not in default with respect to the existing wells or those being drilled, and further providing that at any time after such a default the lessee may upon payment of $10 to the lessor as and for liquidated damages quitclaim to the lessor any portion of the land with respect to which he is then in default, whereupon the rights of the parties shall terminate as to the premises quitclaimed. The answer then admits that the lease required said rental to be paid at Bakersfield but denies that demand has been made and that the defendant has failed, refused and neglected to pay the same. The plaintiff on February 12, 1937, filed a memorandum of motion to set the cause for trial and on the same day filed a notice of motion for judgment on the pleadings on the ground that the answer filed by the defendant did not state a valid defense. When the matter came on for hearing the motion for judgment was granted and a judgment entered, from which this appeal was taken.