Smith v. Crowe

CONREY, P. J.

The plaintiff was the owner of a lease on real property for a two-year term expiring on the sixteenth day of December, 1920, with the option to continue in possession for an additional two years; all at the monthly rental of $35. On the sixteenth day of April, 1920, plaintiff assigned this lease to the defendants. At the same time an agreement in writing was made between the assignor and the assignees, which recited that the sum of $1,000 has been paid for the assignment, and stated “that the $600 balance due for the assignment of lease, shall be paid to E. R. Smith, on or before June 1, 1920, provided he vacates the premises by that date.” This action to recover said sum of $600 was commenced on the fifteenth day of July, 1920. After trial of the action, judgment was entered in favor of the defendants. The plaintiff appeals from that judgment.

It is to be inferred from the written agreement, and the fact is not disputed, that the total purchase price for the assignment of lease was $1,600. It was found by the court that the defendants agreed to pay said price and that the balance of $600 was to be paid as stated in said writing. The court further found that the plaintiff did not vacate the premises described in the complaint on or before June 1, 1920, and that the defendants are not indebted to the plaintiff in said sum of $600, or in any sum whatever. The judgment, however, was not based upon this finding, but upon an order granting a motion for nonsuit.

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At the time of the assignment and contract, the plaintiff was occupying and residing in the first story of the leased house. ■ His subtenant, one Dr. Thatcher, was in possession of the upper story. On June 1, 1920, the plaintiff

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moved out of the rooms actually occupied by him, and the defendants took possession thereof a day or two later.. Dr. Thatcher claimed the right to remain in possession under his sublease, which ran until September 30, 1920. The plaintiff paid to the defendants (who had purchased the property from the owner) the sum of $35, rent for the month of May. Thatcher moved out late in September. It was stipulated that the defendants filed an action against Thatcher and obtained judgment against him for the sum of $350 on account of rental from the eighth day of May, 1920, to the seventh day of October, 1920, being the amount stated in a notice of date September 20, 1920, wherein the defendants required Thatcher to pay the demanded rent within three days of the service of that notice, or deliver up possession of the premises to them.