A-1 Garage v. Lange Investment Co.

NOURSE, P. J.

Plaintiff sued for the balance of a sum of money paid the defendant upon execution of a lease of real property. The cause was tried before the court without a jury and defendant had judgment.

On November 10, 1929, defendant leased to plaintiff a garage for the period of eight years at a total rental of $100,200. Coincident with the execution of the lease, and as consideration therefor) the plaintiff paid to the lessor $10,000. In August, 1932, the lessor took possession of the premises through unlawful detainer proceedings and had judgment against the lessee for $2,975.02 as accrued rent. Plaintiff then brought this action to recover the difference between this sum and the $10,000 paid when the lease was executed.

The pertinent portions of the lease from which this controversy arises are found in paragraph 14, which reads: “In further consideration for the execution of this lease by lessor, lessee has paid to lessor and lessor hereby acknowledges receipt of the sum of ten thousand dollars ($10,000) from the lessee herein; and it is distinctly agreed and understood that in the event of the faithful performance by the lessee of each and every, all and singular, the terms, conditions and covenants of this lease, and the prompt and faithful payment of all the rent and other sums herein

[595]

provided to be paid, at the times and in the manner herein provided, and only in this event, lessor will allow and rebate to the lessee the sum of $41.66 on account of the rent to be paid each month during the term hereof, up to the month commencing January 10, 193

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the sum of $391.00 on account of the rent to be paid for the month commencing January 10, 1937, and the sum of $1100.00 on account-of the rent to be paid for the months commencing on the 10th day of each February, March, April, May, June, July, August, September and October, 1937. It is distinctly agreed and understood that this allowance and rebate shall be made by the lessor only in the event of the faithful performance by the lessee of all and singular, each and every of the terms, covenants and conditions hereof,

which is the sole consideration therefor;