Henne v. Summers

[764]

CONREY, P. J.

In this action i lie defendant is sued upon a bond signed by her as surety for Edward Booth and John W. Neighbours, to secure the performance of certain obligations of a lease made to said princij: .sis by the plaintiffs’ predecessor in interest. The same instruments were construed by this court as to some of their term;-; in

Henne

v.

Summers,

16 Cal. App. 67, [116 Pac. 86], but the testimony considered in that decision is not before the court on the record in this case. The bond was conditioned upon terms that were “to secure the full performance of all the obligations contained in said lease above referred to, and also the last two months’ rent” specified in the lease. The judgment herein is for the sum of nine hundred dollars. The findings show that six hundred and fifty dollars of this amount w.-:is to satisfy a balance due on the last month’s rent and that the remaining two hundred and fifty dollars was allowed on nceount of attorney’s fees incurred in connection with defaults which took place and, which required the rendition of varí ous services to protect the rights of plaintiffs with respect io said lease. Defendant appeals from the judgment.

The lessees incorporated their business and the corporation occupied the leased premises and paid rent without having obtained an assignment of the lease. The corporation’s stock of merchandise in the leased storeroom was attached and bankruptcy proceedings followed. Within five months after the attachment the premises were successively occupied by the sheriff, by a trustee in bankruptcy , and by the purchaser at trustee’s sale of the stock. Each of these paid rent on account of the lease. Then, after notice í o the original lessees and to* the defendant and certain other persons, the plaintiff, Mrs. Henne (at that time acting as executrix of the will of the original lessor) relet the premises and kept them leased from time to time, but was unable to obtain the full rental value provided in the Booth and Neighbours lease. The plaintiffs „ and their predecessors as lessors did not enter into any contract changing the Booth and Neighbours lease or for subleases prior to the notice given undi r the circumstances above noted.