Gordon v. Harris

YORK, J.

This is a suit in. nnlawful detainer, brought against an assignee, who holds under a third assignment of the original lessee, after failure to pay rent after service of a three-day alternative notice to pay rent or quit, the property being then held under such assignment of lease, and originally the only question raised by appellant in this case was, that a sum of five thousand dollars had been received by the owner of the land by way of security only, and not by way of payment of the rent for the latter portion of the period of the lease.

This case is different from the average case in this regard in that the sum of five thousand dollars was not cash paid directly by the original tenant, but was a sum to be deducted from the cost of the construction of the building leased, which building was in course of construction by the original tenant, as a contractor. The phrase

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ology of the lease as to the five thousand dollars is as follows:

“It is understood and agreed that heretofore another agreement was entered into between the said parties wherein the said lessee agrees to construct and build for the said lessor a certain building on which building this lease is given, in accordance with the plans and specifications agreed • between the parties hereto and which said building shall be of the total amount of forty-five thousand ($45,000.00) dollars, and in a manner as described in said agreement between the contractor and the owner, it is agreed that the sum of five thousand ($5,000.00) dollars shall be left unpaid to the contractor as security of the said contractor, the lessee in the lease herein, shall faithfully and substantially comply with the terms agreed in the said lease, and the said sum of five thousand ($5,000.00) dollars, together with the six per cent interest, agreed in the said contract to be paid by the said owners to the said contractor, shall be applied by the said owners in payment of the last nine (9) months rent and further apply the balance for that portion of the tenth month of the last year of said tenancy, as the amount will bear.”

If if were not for the words “as security” and “shall faithfully and substantially comply with the terms agreed in said lease” there would probably have been no controversy between the parties with reference to what was meant. If the five thousand dollars had been paid in cash by the lessee instead of paying the sum by deduction in the cost price of the building, and if this action was defended by the original lessee, the matter would be more simple than it is in its present state. However, there is a direct provision that the five thousand dollars to be thereafter deducted from the contract price,