Alhandy v. Genchi

WOOD, P. J.

In this unlawful detainer action, judgment was for defendants. Plaintiffs appeal from the judgment.

Plaintiffs, the owners of the store building and land involved herein, entered into a written lease of said premises with Mr. and Mrs. Gomory, as lessees, on April 6, 1955. The term of the lease was five years, commencing on May 1, 1955, and ending on April 30, 1960. The rental was $175 a month, payable on the first day of each month. A provision in the lease was as follows:

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‘ Lessor hereby grants an option to lessee before expiration of lease to renew said lease on same terms and conditions for an additional five (5) years.” It was also provided therein: “Lessee agrees to pay first and last months ’ rent before May 1, 1955. ’ ’

The last month’s rent was paid as therein provided.

In September 1955, the lease was duly assigned to Mr. and Mrs. Taylor. On May 20, 1958, the Taylors duly assigned the lease to the defendants Mr. and Mrs. Genchi.

The defendants remained in possession of the premises and were in possession thereof on April 30, 1960, the date specified in the lease as the expiration date of the lease. They paid the rent of $175 a month for all months to and including April 1, 1960. They remained in possession after said expiration date (April 30, 1960) and paid to plaintiffs, and plaintiffs accepted, $175 a month thereafter (to date of tria» in February 1961) as rent on said premises.

On October 10, 1960, plaintiffs served the lessees with a notice which stated that after November 12, 1960, the monthly-rental for the premises would be $450 a month.

The amount of $175 which was paid as the last month’s rent (i.e., for April 1960) was not credited as the rent for that month, and it was not paid to the lessees.

On November 14, 1960, plaintiffs served the lessees with a notice stating that the lessees were required within three days

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to pay $337.15 due as the unpaid rent for the period from November 12, 1960, to December 12, 1960, or to deliver possession of the premises within three days.