Rose v. Hecht

MOORE, P. J.

The question for decision is whether the actual tender of payment of an instalment of rent stops the running of interest as of the date of the tender.

On February 15, 1944, respondents leased their hotel property to one Wolfe and his wife for a term of five years. The rental to be paid was $1,225 per month with an election to take in lieu of the fixed sum, 30 per cent of the rent revenue from the hotel. The date when such election could be exercised was not definite. As soon as the lease was assigned to appellants respondents refused to acknowledge the validity thereof and in April, 1945, instituted an action against the Wolfes to reform the lease, and appellants were joined as defendants. Final judgment denying reformation was not entered until after the order of submission of the instant actions,

Lori, Ltd.

v.

Wolfe,

85 Cal.App.2d 54 [192 P.2d 112]. However, despite the facts (1) that judgment denying such relief by the trial court had been entered, (2) that there was no covenant against assignments of the lease and (3) that appellants had tendered

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all payments of rentals provided thereby to be paid on December 24,1945, respondents sued appellants asserting a nuisance, breach of lease and demanded payment of rents. In this they failed. On January 4, 1946, they commenced a series of six legal actions against appellants for rents due and in each instance attached appellants’ bank accounts. At the time of the levy of each writ the bank held sums far in excess of the amount demanded and respondents held appellants’ checks on the same banks for the sums due according to the lease. When appellants surrendered possession, June 15, 1947, their funds in the banks under attachment totaled $49,454.63, while respondents had received checks aggregating $48,312.20, drawn on the very accounts which had been attached. Bach check had been tendered in payment of rent for a definite period and their total was the amount of rent that had been earned under the lease. Only the last two actions filed are involved herein. The first of these was filed March 31, 1947, and was for “the reasonable value of the use and occupation of the premises” from February 15 to December 14, 1946, and demanded $23,633.44. It alleged that defendants had offered to pay the sum of $23,633.44 for the period in question but that plaintiffs “were in a dilemma and could not accept it without prejudicing their rights.” The second of the instant actions was filed August 1, 1947, and was based on six checks theretofore issued by appellants to respondents. The sum demanded was $12,178.67.