Strei v. Brooks

THE COURT.

The above actions, which involve claims for rent under the same lease but covering different periods, were tried together, and both appeals are presented on the same record.

The deceased, W. E. Strei, and U. S. Johnson were lessees from John McCaslin of a certain store building in the city of Oakland. On November 29, 1922, they sublet the premises by a lease in writing to defendants C. Earl Brooks and R. G. Bartlett for the term of four years and eleven months at a monthly rental of $225. The rent has been paid in full to March 1, 1926, and in addition $50 was paid on account of the rent for that month. On or about May 14, 1924, there being at that time no default in the payment of rent, Brooks sold to Bartlett his interest in the business which they were then conducting on the premises, and also assigned to him his interest in the lease. Subsequently Bartlett obtained the consent of Strei and Johnson with that of McCaslin and his wife to the assignment. Bartlett remained in possession till the month of April of 1926,

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when he vacated the premises. In the first cause of action plaintiffs sought to recover the rent for the months of March, April, May, and June, 1926, less the partial payment made in March, and by the second the rent for the months of August, September, and October, 1926. Defendant Bartlett failed to appear, and a judgment by default was entered against him. Defendant Brooks—who will be hereinafter referred to as the respondent—by his answer alleged, and the court found, that on May 14, 1924, and previous to the time when the rent sought to be recovered became due, the plaintiffs, in consideration of his selling his interest in the business to Bartlett, agreed to release and discharge him from further liability under the lease and to accept Bartlett as the sole tenant; that pursuant to this agreement respondent sold his interest in the business and assigned the lease to Bartlett, whereupon plaintiffs released him from further liability and accepted Bartlett as the sole tenant. It was further alleged and found that on or about March 13, 1926, the plaintiffs entered upon the premises and so changed and altered the same that they were unfit for the purposes for which they were leased, and that the lease was thereby rescinded as to respondent Brooks. From these findings the court concluded that Brooks had been released and discharged from any liability for rent and entered judgment accordingly.