Syrett v. Strickland

KING, P. J., pro tem.

T

his is an appeal by plaintiff • from:

1. A judgment sustaining a demurrer to plaintiff’s amended complaint without leave to amend and dismissing the action.

2. An order of the court, made as a special order after final judgment, vacating an order of arrest of the defendant J. C. Strickland.

3. An order of the court dissolving an attachment.

The amended complaint states that plaintiff and defendant entered into an agreement in writing whereby plaintiff leased to defendants certain premises under which defendants entered into possession. The lease is set out in full. That plaintiff made expensive alterations to the property which were suited to the purposes of the lease, but otherwise valueless.

That prior to its termination defendants repudiated and abandoned the lease and premises, declaring they would not be bound by the lease; and that they would not pay the unpaid balance to become due nor keep possession of the premises, but avowed their intention of leaving the state and abandoning the lease and premises. That defendants had disposed of and concealed their property and were about to leave the state with intent to defraud the

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plaintiff out of his claim against them. That by reason of the breach of said lease plaintiff had been damaged.

The prayer is for damages in the amount yet unpaid on the lease and that defendant J. C. Strickland be adjudged guilty of fraud and held for bail for satisfaction of the judgment.

The lease is for a total of $4,500 for five years, of which the first month and the last month were paid in advance. The complaint, filed October 25, 1924, alleges that $2',625 of the total rental was yet unpaid, being payable at $75 per month on the 15th of each month. It is apparent, then, that twenty-five months’ rental had been paid, including the last month paid in advance, so that the rent was paid up to November 15, 1924.

To this amended complaint the defendants demurred generally, and also on the ground of uncertainty “in that it cannot be ascertained therefrom whether or not there is any rent now due and unpaid, and also that it cannot be ascertained therefrom whether or not defendants are now in the possession of the premises or in what manner they abandoned the same, or who is now in possession of said premises.”