Gates v. Kehlet

RICHARDS, J.

This is an appeal by the defendant Armstrong from a judgment in favor of plaintiff in an action brought to recover a sum of money alleged to be due under the terms of a certain lease and of an alleged agreement on the part of said Armstrong guaranteeing the performance of the terms and conditions of said lease.

This appeal is based upon the judgment-roll alone, and the only two questions presented by the appellant are, first, as to whether the findings of fact are sufficient to support the judgment, and, second, as to whether the plaintiff’s amended complaint contains facts sufficient to constitute a cause of action.

The following is a summarized statement of the findings of the trial court, which we must assume upon the record before us are fully sustained by the evidence in the ease: On the twenty-fourth day of September, 1912, the plaintiff and respondent herein as lessor, and the defendant and appellant Armstrong herein as lessee, made and entered into a written lease of certain premises in the city of Los Angeles at a rental of $125 monthly during the first year of the term of said lease, and of $150 per month during the remaining four years of said term, which said term of said lease was to expire on the thirtieth day of September, 1917. Said defendant Armstrong entered into possession of said premises under said lease. Thereafter, and on the fourth day of December, 1913, the said Armstrong, with the consent of his lessor, assigned all of his interest in said lease to the defendant herein, Oswald Kehlet, upon the express condition that said Armstrong should remain liable to the said lessor for the performance by Kehlet of all the terms and conditions of said lease. Thereafter and on the first day of May, 1914, the said defendant Kehlet, with the consent of the original lessor, assigned all of his interest in said lease to the defendants herein, Mary B. and Ade Orrill, upon the express condition and agreement that the said defendants, Armstrong and Kehlet, should and did become and remain guarantors for the performance by

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the said assignees of Kehlet of all of the terms and conditions of said lease. Thereafter the premises became vacant, and so remained from October, 1914, to May, 1915, during all of which time the defendants had the keys to and possession of said premises. In the month of May, 1915, the defendant Ade Orrill gave the keys of said premises to the plaintiff upon the express understanding and agreement that the plaintiff would make what effort he could to rent said premises, but only on behalf of, and for the benefit of, the defendants herein, and that neither they nor any of them would thereby be relieved from any liability whatever, but that in case the said premises were relet for any sum less than the stipulated rental thereof under the terms of said lease and of said assignments thereof, the lessor would expect the defendants to pay him the difference. That the plaintiff in the exercise of reasonable diligence did succeed on or about June 1, 1915, in obtaining a tenant for said premises for a stipulated rental of $75 per month up to December 31, 1915, and thereafter again rented said premises for the period between January 1, 1916, and December 31, 1916, at a stipulated rental of $90 per month, but that said premises then became vacant and so remained between January 1, 1917, and September 30, 1917, the date of the termination of the original lease of said premises. That after crediting the amounts so received from the succeeding rentals of said premises through the efforts of said plaintiff upon the total sums due and payable under the terms of said original lease there still remained due the sum of $2,325 as rent of said premises, for which sum, together with certain expenses, costs, and counsel fees, the court rendered judgment against each and all of said defendants. From the judgment so rendered the defendant Armstrong prosecutes this appeal.