Henne v. Summers

ALLEN, P. J.

The action was one to enforce the provisions of a certain bond in the sum of $1,800 executed by defendant in favor of C. Henne, plaintiff’s testator. It is made to appear by the record that on or about the twentieth day of November, 1906, Edward Booth and John W. Neighbours leased from Henne, for the term of five years from the first day of January, 1907, a certain storeroom in the city of Los Angeles, by which lease the lessees covenanted and agreed' to pay to said lessor as rent for said premises the sum of $54,000, payable in monthly installments of $900 each in advance on the first day of each and every month of said term of the lease. Certain other covenants are found therein of the usual and ordinary character, with reference to keeping the premises in good order and condition, not to make alterations or repairs without the consent of the lessor, not to underlet the premises without the written consent of the lessor, and with a covenant that if the lessees should move out or abandon said premises, or any part thereof, the lessor might relet the same and apply the proceeds collected, less the expenses, upon the rent to be paid by the lessees, and the lessees should be liable for the payment of any balance due under the lease; and it is expressly provided that such reletting shall not operate as a termination of the lease or as a waiver or post

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ponement of other rights or remedies; and there are certain other obligations with reference to not engaging in any hazardous or extrahazardous business, which might result in damage to the building. Contemporaneous with the execution of the lease, Booth and Neighbours, as principals, with Emma A. Summers, as surety, executed to Henne a bond in the sum of $1,800, conditioned that the same was given to secure the full performance of all of the obligations contained in said lease above referred to, and also the last two months’ rent to become due and payable as therein specified and provided, being the rent for the months of November and December, A. D. 1911. It further appears that, with the consent of Henne, Booth and Neighbours, shortly after the execution of the lease, assigned and transferred the same to a corporation, called the Booth & Neighbours Clothing Company, and the said corporation took possession of the premises, paying the rent therefor and performing all other conditions, until the first day of January, 1908, at which date the corporation became bankrupt. Thereafter, one Harris, trustee in bankruptcy, entered into an' agreement with plaintiff for the use and occupation of said premises from the twenty-seventh day of March, 1908, until the first day of July, 1908, at a rental of $20 per day, and thereafter at the rate of $500 per month until the first day of September, 1908, paying to the lessor as rental the aggregate sum of $5,454.97 from January to August, 1908, inclusive; the balance of the rental for said premises, amounting to more than $2,700, remaining unpaid. The defendant by her answer denied that the original lessees ever actually took possession, but that the premises were occupied solely by the corporation; and, further, alleged that at the time of the execution of the undertaking sued on it was agreed and understood that said undertaking, so far as the same referred to rent falling due under the terms of the lease, should apply only to the last two months of said term, and that the condition of said bond with reference to the performance of all obligations contained in said lease referred to, and was intended only to apply to, obligations of said lease other than the payment of rent. Upon the trial of the action the court permitted the defendant to introduce evidence, under objection, tending to show that at the time of the execution of the lease it was orally agreed that,