Jacoby v. Peck

[184]

BURNETT, J.

The appeal is upon the judgment-roll from a judgment of the superior court of the city and county of San Francisco, in favor of plaintiff, for the sum of twelve hundred dollars with interest and costs. The contention of appellant is that the conclusion of law from the findings of fact should be for a larger sum in his favor. The following facts are found by the court: On and prior to July 13, 1904, plaintiff’s assignor, M. J. Keller Company, a corporation, was in the occupation of the premises known as 1028-1030 Market Street, San Francisco, under a lease from Messrs. Cook & Bruntch, the owners of the property, the lease providing for a monthly rental of $1,150, and to expire on December 31, 1907. On said July 13, 1904, the M. J. Keller Company and James J. Gildea entered into a written agreement reciting “that whereas, said party of the first part occupies the premises known as 1028-1030 Market Street, San Francisco, California, under a lease made by E. E. Cook and C. M. E. Bruntch to the said party of the first part, said lease calling for the payment of a monthly rental of eleven hundred and fifty (1150) dollars and said lease expiring on the first day of January, 1908, and whereas, the said party of the second part desires to secure the said leasehold interest for the unr expired term thereof from and after the 15th day of September, 1904 . . . and whereas the lessors of said property have agreed to transfer and assign the said lease to said party of the second part in consideration of an additional monthly payment to them of one hundred dollars for the unexpired term of said lease;

“Now, therefore, it is hereby agreed by the parties hereto as follows, to wit:

“That said party of the second part shall, on or before the -day of-, 1904, organize a corporation under the laws of the state of California which shall assume and agree to perform the following things: (1). Said party of the second part and said corporation so to be formed shall assume the lease of said property for the unexpired term thereof, from and after the fifteenth day of September, 1904, that is from the fifteenth day of September, 1904, to and including the 31st day of December, 1907, and shall pay the owners of said property a monthly rental thereof at the rate of twelve hundred and fifty dollars per month, payable in