Calkins v. Berliner

CONREY, P. J.

The defendants appeal from the judgment rendered against them for a specified sum of money, and the appeal is presented on the judgment-roll alone.

In January, 1913, a contract was entered into between the plaintiff and the defendants under which the defendants, as lessees, took possession of certain mules and wagons delivered to them by the plaintiff, and were io pay to plaintiff a certain sum per month for each pair of mules and another certain sum per month for each wagon. The complaint alleged that on May 17, 1913, when the action was commenced, there was due the plaintiff under said contract, as rental for the month of April, the sum of $454.32, and for the month of May, up to the seventeenth day of May, $247.98; which said sums had been demanded and payment refused. As the court held that in respect to the latter amount the action was prematurely brought, and only rendered judgment for the indebtedness accruing in April, it is not necessary to discuss any questions arising, except with reference to the demand for April.

The answer of the defendants admitted that on May 1, 1913, they were indebted to plaintiff on account of the use of said personal property for the month of April in a sum one dollar less than the amount stated in the complaint, and alleged that said sum was not due or payable, in whole or in part, to plaintiff “until on or after May 10, 1913.” They further alleged that by the terms of the contract they were to pay the rental accruing in any one month upon a day subsequent to the tenth day of the succeeding month, the exact day to be determined by the date of the “actual receipt by defendants of the amount earned by them in grading during the preceding months” under a contract of the defendants with other parties for grading upon the Ardmore Heights Tract in the county of Los Angeles. The court found that the rental due for April was $453.32, as stated in the answer; and that the money due for the use of said property should be paid on the 10th of each month for the preceding month, “or as soon after the 10th day of the month as the money was received by the defendants from the Ardmore Heights Tract

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Company.” The court further found that between the first and tenth days of May, 1913, defendants received from said company a payment of approximately four hundred and fifty dollars, and on or about the nineteenth day of May, five hundred dollars.