Allen v. Alberts

McCOMB, J.

From a judgment in favor of plaintiffs in the sum of $5,450.90 after trial before the court without a jury in an action to recover damages for the conversion of furniture, furnishings and equipment located in a hotel which plaintiffs’ predecessors had leased to defendants Alberts’ assignors, defendants appeal.

The evidence being viewed in the light most favorable to plaintiffs (respondents), the essential facts are:

Plaintiffs are the present owners of the California Hotel. Their predecessors in interest leased the hotel to one Sarber, which lease, with the consent of the lessors, was assigned to defendants herein. So far as material here, the lease provided as follows: “Lessee agrees to keep and maintain said furniture, furnishings, equipment and/or fixtures in good order, condition and repair. Lessee agrees furthermore, when and as said furniture, furnishings and/or equipment shall be worn out or, by reason of wear or otherwise, not reasonably fit for use in the demised premises in connection with the conduct of the demised premises as a first-class hotel, that lessee will at his sole cost and expense replace the same with new and fully paid for furniture, furnishings, equipment and/or fixtures, as the ease may be, of a like or better type and character, which said furniture, furnishings, equipment and fixtures shall immediately upon its installation become and be the property of lessor and shall be included in the furniture, furnishings, equipment and fixtures leased hereunder. Lessee agrees that none of the furniture, furnishings, equipment or fixtures now

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or hereafter installed in the demised premises shall be removed therefrom without the consent in writing of lessor first obtained, except and when and as separate pieces or portions of said furniture, furnishings, equipment or fixtures may become worn out or not fit for use in the demised premises in connection with the conduct therein of a first-class hotel, lessee may then remove the same provided that coincident with said removal the same must be replaced by new and fully paid for furniture, furnishings, equipment or fixtures, as the case may be, of a like or better type and character.

“Lessee expressly covenants and agrees that upon the termination of this lease, whether by the expiration of time or otherwise, he will immediately surrender and deliver up the demised personal property to lessor, his agents or attorneys, in the condition in which lessee is obligated to keep and maintain said personal property under the provisions of paragraph 42 hereof, excepting only damage by act of God which lessee could not reasonably have anticipated and guarded against.”