Wickstrom v. McGrath

McLUCAS, J., pro tem.

T

his is an action in unlawful detainer. Defendant appeals from the judgment.

Plaintiff and defendant entered into a written lease whereby the plaintiff leased to defendant a certain apartment building for the term of ten years, beginning November 1, 3923, at a total rental of $97,920, payable in monthly installments of $816 each. The lease contained the following provisions:

“Receipt is hereby acknowledged of the sum of $3,264.00, being in payment of the first, and last three months rents

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under this lease, of which said sum the amount of $2,488.00 being the amount of rent owing for the said last three months rental, shall be held without interest, for at least one year and a half from this date, and said second party shall have the right thereafter, of drawing down said cash deposit of $2,448.00 when said second party can give to first party a good and sufficient first lien chattel mortgage on the furniture and furnishings in said building in the sum of $10,000.00 and in any event said mortgage must be given to lessor within three years.

“It is expressly understood and agreed that the fact that the said first party holds security, does not impair or affect, in any manner, the right of said lessor, in the event of default on the part of the said second party, to terminate this lease and re-enter and take possession of the said premises as hereinbefore provided, or to maintain an action at law, for the recovery of any rent that may be due or unpaid under this lease. Should any of the rents herein reserved be due and unpaid, or should the parties of the second part be in default in any of the other obligations herein undertaken by the party of the second part, the party of the first part, may, at her option, terminate this lease forthwith and re-enter and take possession of the premises and remove all persons therefrom.

“And it is understood and agreed that the fulfillment and due observance of the various terms, provisions, promises, agreements, covenants and conditions of this lease constitute the condition on which the continuance of this lease shall depend, at the option of the party of the first part.”

On June 1, 1925, and prior to the commencement of this action, defendant left the apartment house in charge of one Mrs. E. Ruhl. At the trial it was stipulated that no rent was paid by the defendant for the month of June, or thereafter. It was also stipulated that a notice to pay rent or deliver possession of the premises within three days from the service of said notice, a copy of which was attached to the complaint, was served upon Mrs. Ruhl, who was managing the apartment house, on June 13, 1925, before the filing of the action. On July 1, 1925, a receiver was appointed on the application of the plaintiff. At the time the judgment and findings were signed by the court there was due and owing by the defendant