Zautz v. Sebrean

TYLER, P. J.

This action is one in assumpsit and was brought to recover money paid under the terms of a lease and also for the value of certain goods sold and delivered. Plaintiffs obtained judgment in the sum of $2,083, and defendants appeal.

The facts may be briefly summarized as follows:

Defendants were the owners of certain real property situated in San Leandro, county of Alameda. The premises

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were improved with a brick building known as the Cherry City Garage. On October 15, 1920, and prior thereto, one Leslie Galbraith was in possession thereof under a lease covering a period of some five years. He was in arrears in rent and wished to dispose of his lease and business. Plaintiffs being informed of this fact, communicated with the defendants and expressed their desire to purchase the business and lease the premises. They did not care to deal directly with Galbraith as they were of the opinion that defendants could acquire the business upon better terms than they. Accordingly they agreed that defendant P. W. Sebrean should conduct the negotiations and purchase the garage for them. This arrangement was carried out. Sebrean acquired the lease for the sum of $1,750. He also, and at the same time, and for the benefit of plaintiffs, purchased from Galbraith automobile accessories to the amount of $633.32. In addition to being in arrears in rent Galbraith was indebted to various people in different sums, and the entire amount of the purchase price he received from the sale of his lease and business was distributed among his creditors.

Upon acquiring the property in the manner thus indicated defendants as lessors and plaintiffs as lessees entered into a contract of lease of the same for a term of five years at a monthly rental of $350 per month, payable monthly in advance. Under its terms the parties agreed that the lessees would be credited with the sum of $1,750 they had paid Galbraith for his lease, said sum to be applied on the last five months of the term. One month after entering into this contract, and when in default in payment of the second month’s rent one of the plaintiffs Charles Zautz served defendants with a notice of rescission of the lease and' sale, claiming that he and his associate had been defrauded. At the same time he delivered the keys of the leased premises to them with the suggestion that they take possession of the premises in accordance with the provisions of the lease entitling them so to do in the event of nonpayment of rent on the part of plaintiffs, one of the covenants of the lease between the parties providing that if any rent should be due and unpaid or default should be made in any of the provisions thereof that the lessors would have the right to re-enter the premises and remove all persons therefrom. Demand was also made at this time upon de