Grace v. Croninger

SPENCE, J.

This is an action by a lessor based upon a written guaranty of the covenants of a lease. Some of the facts are set forth in the opinion in

Grace

v.

Croninger,

56 Cal. App. 659 [206 Pac. 130], which litigation involved a claim for rent accruing prior to the time that this action was commenced. The complaint herein was filed in June, 1919, at which time the other litigation was still pending. The lessor sought by the original complaint in this action to recover additional rent which had become due upon the premises up to and including the month of June, 1919, together with attorney’s fees. After the decision in the previous litigation had become final, the rent demanded in the original complaint herein was paid. A supplemental complaint had been filed in October, 1919, seeking to recover rent for the remaining months of the lease, to wit, July, August, September and October, 1919, at the rate of $650 per month, together with interest and attorney’s fees.

There have been substitutions of parties herein, but it is sufficient for our purposes to refer to the parties as the lessor, the lessee and the guarantor. The lessor proceeded to trial against the guarantor alone and the cause was tried by the court sitting without a jury upon the supplemental complaint and the answer thereto. The trial court entered judgment denying to the lessor any recovery against the guar

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antor for rent due from the lessee, but awarding to the lessor the sum of $299 as attorney’s fees. The lessor has appealed from said judgment and the guarantor has appealed from that portion thereof awarding attorney’s fees.

Certain facts should be stated in addition to those set forth in

Grace

v.

Croninger, supra.

The so-called War-Time Prohibition Act became effective on July 1, 1919, and remained in effect until after the termination of the lease on October 31, 1919. Said act made it unlawful to sell intoxicating liquor for beverage purposes. The lease herein provided that the premises were let “for the purpose of therein carrying on the business of a saloon and cigar store, and for no other purpose or purposes whatsoever”. It was further provided that “said lessee will not underlet the whole or any part of said demised premises except for bootblack and, or cigar store purposes”. After the effective date of the act above mentioned, the lessee and his subtenants continued in possession of the premises until the lease terminated. Said lessee continued to operate the saloon portion of the premises for the sale of nonintoxicating beverages. No part of the rental for said four months was paid.