Baker v. Eilers Music Company

JAMES, J.

This is an appeal from a judgment entered against the plaintiff: and is presented on the judgment-roll. Two actions were brought, each being to recover .a sum of money alleged to be due under the terms of a certain lease affecting real property in the city of Los Angeles. It was stipulated at the trial that both actions should be tried together and but one judgment rendered. The appeal is presented in the same way, although the actions are separately . entitled.

By the findings of fact it appears that appellant as lessor, on the eighth day of October, 1910, entered into a lease contract with respondent whereby he let to it certain premises situated on South Broadway Street in Los Angeles City for a term of two years and six months for a gross rental of twelve thousand dollars, which was made payable in sums of four hundred dollars on the ninth day of each and every month; that possession was given of the leased premises to respondent and that it continued to occupy .the same and to .pay the rental specified up to the ninth day of January, 1912. It is further found that after respondent had taken possession of the premises it permitted the lessor to use a space along the north wall of the building, where there were located windows used for the purpose of admitting light

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and air. Just when this permission was given does not appear. It was further found that no written agreement was mad® permitting such use of said space, and that on the fifth day of July, 1911, the lessee, by notice in writing, demanded that the lessor re-deliver the portion of the premises then being used by him, which demand was refused. On the twenty-first day of July, 1911, a written notice was served upon the lessor by which the lessee gave notice that it rescinded the lease contract. Six months later the lessee vacated the entire premises, as appears by finding IX of the trial judge which is as follows: ‘‘That defendant vacated the portion of said premises theretofore occupied by it, and re-delivered the same to plaintiff on the eighth day of January, 1912, and that on the thirtieth day of January, 1912, the plaintiff took possession of the said premises and offered them for rent to others.” As a conclusion of law the court found that there had been an eviction suffered by the lessee, and that there could be no recovery of any rental. It should be mentioned that the money claimed in suit was for rental of the premises for the months of March and April, 1912, all of which would have accrued, if at all, subsequent to the time that it is found by the court the lessor took possession of the premises and offered them for rent to others. The court found also the fact to be that a part of the consideration for the making of the lease was an agreement on the part of the lessor, which was consummated, to loan to the lessee the sum of thirty thousand dollars, which was secured by collateral.