People v. California Safe Deposit & Trust Co.

RICHARDS, J.

In this action, originally instituted for the purpose of having the defendant California Safe Deposit & Trust Company declared an insolvent corporation and for the administration of its assets, the appellant herein intervened, setting up certain facts upon which he claimed to be entitled to recover judgment for the sum of two thousand dollars and interest, and to have certain other and further relief.

The facts out of which his claim arose are substantially undisputed and are as follows: During the month of July, 1906, the appellant was a lessee for a term of years of one Leonide G. Auzerais of certain premises déscribed in his petition. The California Safe Deposit & Trust Company desired to secure a lease of said premises for its own uses. Accordingly Mrs. Auzerais, the appellant, and the representatives of said corporation came together in an understanding whereby the appellant’s lease was canceled and a new lease was made by Mrs. Auzerais'to the corporation for a term of five years with certain privileges of renewal. As the consideration for the cancellation of the appellant’s lease the said corporation entered into an agreement with him, whereby it agreed to pay him two hundred dollars per month for the period of the five year term of its lease, and, in the event of its renewal, to pay him said sum of two hundred dollars per month during the further period of five years. There were certain other agreements not material to this controversy in view of later developments. In the latter part of the year 1907 the said corporation became insolvent, and this action was instituted by the state of California for the administration of its affairs. Not long- thereafter Mrs. Auzerais applied to the court in which said proceeding was pending for leave to bring an action in ejectment against said insolvent, alleging the termination of its lease through the insolvent’s failure to com

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ply with its terms. The court denied her petition, but permitted the receiver to compromise the matteb with her by a surrender of the premises and a cash payment of four thousand dollars. Thereafter the appellant filed his petition in said court asking for certain relief under the terms of his foregoing agreement. His first prayer was for the payment to him of a sum of two thousand dollars, with interest at the rate of seven per cent per annum from the dates when the respective monthly payments aggregating said sum fell due, and for an accounting as to such further amounts as might be found due under his agreement with the insolvent corporation; that such sums should constitute and be a preferred claim against said insolvent, and should also be decreed to be a lien on the said property of Mrs. Auzerais. The trial court found that there was due to the appellant the principal sum of $1,535 upon his agreement with said corporation, and gave judgment for said amount as a common claim, to be paid in the same manner as other common claims in due course of the liquidation of the affairs of the corporation; but the trial court refused to allow the appellant any interest on the sums of monthly accruing payments aggregating the said sum for which it gave its judgment in appellant’s favor, and also denied the prayer of the appellant to have the said claim made a preferred claim or to have the same imposed as a lien upon the property of Mrs. Auzerais.