Wollenshlager v. MacLean

CONREY, P. J.

Plaintiff appeals from the judgment and from an order denying his motion for a new trial. He prosecuted this action to recover an alleged unpaid balance of rent for the months of November and December, 1913, and January, 1914, under a ten-year lease of an apartment house in the city of Los Angeles. The lease was executed on May 14, 1913, to the defendants by Elias A. Shedoudy, who, on the sixteenth day of October, 1913, conveyed the premises

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to the plaintiff and executed to him a transfer of the lease. The lease provided for a rental of $532 per month, payable monthly in advance.

On May 16, 1913, Shedoudy and the defendants, as parties of the first part, made an agreement in writing with one Colyear by which Colyear was authorized to furnish the apartment house, at a cost which should not exceed ten thousand dollars without the written consent of the first parties. It was agreed that Colyear should install a competent person in the building as manager for the purpose of running and operating the apartment house “until the said property or apartment house can be leased and the furniture and furnishings placed in said buildings by the party of the second part is sold upon terms and conditions satisfactory to both parties hereto. ’ ’ It was also agreed that the first parties should receive no rent for the premises during the continuation of that agreement; that the net receipts from the rentals from the rooms in the building should be divided equally between the parties thereto during the life of the agreement; that one-half of the net profits of the business, after paying the running expenses thereof, should be paid to the first parties by way of compensation for the use and rent of the building, and the other half should belong to Colyear; that if the moneys so received from the rent of the rooms should be insufficient to pay the operating expenses thereof, the loss would be borne equally between the parties of the first part and the party of the second part. It was agreed that either party should have the right to endeavor to secure a tenant to purchase the furniture and furnishings and to lease the building; the tenant and terms of the lease must be satisfactory to the first parties and the price and terms of sale of the furniture and furnishings must be satisfactory to the second party. If the price obtained from the purchaser should prove to be greater than the invoice price of the furniture and furnishings, the surplus above the invoice price would be equally divided between the parties to this agreement. The agreement further provided: “Nothing contained in this agreement shall be construed to constitute a partnership between the parties hereto, it being the express intention of said parties to make a contract for the sale of said furniture and furnishings satisfactory to said second party and the execution of a lease of said real properties above described