Gordon v. Green

KERRIGAN, J.

This action was brought to recover certain rents alleged to be due and unpaid under the terms of a written lease. Two causes of action are alleged, the first being one to recover a judgment for unpaid rent and for the foreclosure of a mortgage upon certain furniture given to secure the payment of the rent and also the performance of all promises and conditions of the lease. By the second cause of action plaintiff seeks to recover a judgment of foreclosure of a second mortgage upon the same property, given to secure the payment of a certain promissory note in the sum of $3,500.

As a defense to the first cause of action defendant alleged that there had been a change in the written contract of lease by an oral executed agreement. To the second cause of action defendant alleged payment of interest and tender of the principal.

The lease was entered into by plaintiff and defendant on August 12, 1914, and by its terms was to continue until March 8, 1920, and defendant promised to pay plaintiff as rent for the premises the sum of $625 per month, payable in advance on the eighth day of each month up to the eighth day of March, 1915, and the sum of $666% per month for the succeeding five years of the term. Tq

[767]

secure the payment of the rent in accordance with the terms of the lease one of the mortgages here involved was executed. Defendant entered into the occupancy of the hotel premises under the lease, by the terms of which there became due to plaintiff as rent the sum of $43,041.61, and at the time of the commencement of this action on December 15, 1919, defendant had paid to the plaintiff the sum of $30,666.89, leaving $12,394.77 unpaid. These facts are not disputed by defendant, but he alleges that the lease with reference to the amount of rent due thereunder was changed by agreement between the parties.

The trial court found that defendant had entered into possession of the premises described in the lease set forth in the first cause of action, but further found that such terms were subsequently changed by an oral agreement between the parties, and that such agreement was carried out 'by the lessee and accepted by the lessor. This change in the lease as found by the trial court consisted in an agreement which in substance provided that, pending the hard times and general depression of the hotel, apartment house, and rooming-house business in the city of Los Angeles, the lessor agreed to accept in lieu of the amounts specified in the lease all of the income derived from the premises over and above the expenses of the business and a moderate allowance for the support of the defendant and his wife for managing said business. It further found that this condition had improved after the eighth day of September, 1919, since which time defendant had promptly paid to plaintiff monthly the rent according to the terms of the lease. The court thereuporh entered a judgment that plaintiff take nothing by her first cause of action, and that as to the second cause of action she have and recover the sum of $3,500, and ordered the receiver who had heretofore been appointed by the court to forthwith “deliver the said property held by him to defendant and account immediately as to the receivership.”