Harrelson v. Oro Grande Lime & Stone Co.

SHAW, J.

This action was brought to recover from defendants four hundred and fifty dollars, alleged to be due under the terms of a written lease as rental for certain real estate. Defendants answered admitting default in the payment of rent as alleged, but in defense of the action they set up a counterclaim in the sum of three hundred and seventy-four dollars, paying plaintiff the difference between the four hundred and fifty dollars sued for and the amount of the alleged counterclaim.

The question involved at the trial was the right of defendants to recover upon the counterclaim. Judgment went for the defendants, from which, and an order denying his motion for a new trial, plaintiff appeals.

The counterclaim grows out of the following facts: On January 22, 1902, plaintiff executed to defendants Stimson and Fleming a lease of a parcel of land in the city of Los Angeles, for a term of ten years. The lessees erected buildings and made improvements upon the property, and thereafter, without assigning the lease, sublet the same to defendant Oro Grande Lime and Stone Company, of the capital stock of which Stimson and Fleming were the sole owners, to which they sold the buildings. The lease contained a provision as follows: ‘ The lessees shall have the right, upon the termination of this lease, to remove all buildings and improvements placed hy them upon said premises, unless they shall forfeit their right to remove the same, as hereinafter provided.” On December 12, 1905, the city of Los Angeles commenced proceedings to condemn a portion of the prop

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erty described in the lease. While the Lime Company was not made a party to this proceeding, its sole owners, Stimson and Fleming were parties and represented by attorneys at the hearing before the referees. Moreover, an award made as to the leasehold interest was received and receipted for by the Lime Company; so the fact that it was not formally made a party, so far as this action is concerned, is unimportant. On January 10, 1908, the referees filed their report and finding, whereby it was made to appear that plaiutiff was the owner of the land and that Stimson and Fleming had a leasehold interest therein as shown by the lease herein-before referred to. They further found that the value of the parcel of land sought to be condemned was $8,236; that the value of the improvements thereon was $374; and that the damage to the portion of the property not condemned was $794, making a total of $9,404. Of this sum $8,404 was awarded to plaintiff as owner of the land, and one thousand dollars was awarded to Stimson and Fleming as “owners and holders of a leasehold interest” therein. At the hearing of this report an interlocutory decree was duly entered in accordance therewith, from which no appeal was taken, and final judgment followed.