Burd v. Downing

JAMES, J.

The judgment in this action was in favor of the plaintiff, and defendant has appealed.

The plaintiff, after showing her appointment as administratrix of the estate of James Burd, deceased, alleged that on the twenty-first day of January, 1914, the said Burd entered into a lease with the defendant covering certain real property in the city of Long Beach known as the Kensington Apartments; that at the same time the said James Burd and Mattie E. Burd executed to the defendant a mortgage for the sum of $325 to secure the payment of the last month’s rent to become due under said lease; that on the third day of April, 1914, an agreement in writing was made between the said James Burd and defendant, whereby the said lease was canceled and the lessee released from all obligations thereunder; that the rent due had been paid “including the last month of the term of said lease.” It was further alleged that demand had been made by plaintiff administratrix upon defendant that he release the mortgage, which demand had been refused. By reason of such refusal it was alleged that the estate of James Burd had suffered damage in the sum of $500 and that said estate was entitled to collect a penalty of $100 in addition thereto. The prayer was for recovery of damages in the amount stated and concluded with the following demand: “That an order may be made directing the defendant to execute a release of said mortgage, and for such other and further relief as the court may deem equitable.” There was a demurrer to the complaint, which assigned various grounds in

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addition to the general ground that a cause of action was not stated. Among, the special grounds was that which assigned a misjoinder of causes of action in that “a cause of action sounding in damages and a cause of action in equity” had been misjoined, and that they had not been separately stated. The court made findings determining that all the allegations contained in plaintiff’s complaint were true and further specially found that the lease was canceled on the 3d of April, 1914, and that the debt for which the mortgage was given as security had not become due at that time. Notwithstanding the general findings determining all of the allegations of plaintiff’s complaint to he true, the judgment allowed no damages to be recovered, but it was adjudged that the mortgage referred to had been satisfied and discharged.