People v. California Safe Deposit & Trust Co.

HAVEN, J.

The ahove-entitled proceeding was commenced on December 7, 1907, in the name of the people of the state of California, upon complaint of the bank commissioners of the state, under the provisions of the Bank Act of March 24, 1903, as amended in 1905, for the purpose of obtaining the appointment of a receiver for the liquidation of the affairs of the California Safe Deposit and Trust Company (hereinafter referred to as the bank). The re

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spondent, B. De Los Magee, is the present receiver in said proceeding. On July 28, 1917, by leave of court first had and obtained, the appellant, George S. Smith, filed his petition in intervention in said action, wherein he prayed for judgment in the sum of nineteen thousand dollars, with interest, alleged to be due to said appellant upon certain contracts executed by the bank prior to the commencement of this proceeding. The facts upon which said claim is based are briefly these:

On July 31, 1906, appellant, George S. Smith, was the lessee of certain premises on Fillmore Street, in San Francisco. The bank desired to secure a lease of said property, and entered into negotiations with the owner thereof for that purpose. As a. result of such negotiations the lease between the owner of the property and the appellant was canceled, a new lease was executed by the owner to the bank, and an agreement was entered into between the bank and appellant, upon which latter agreement the rights sought to be enforced herein are based. Under such agreement the bank agreed to pay the appellant two thousand dollars in cash and two hundred dollars a month for a period of five years from July 31, 1906; and further agreed that, under certain conditions, it would continue said payments of two hundred dollars a month to appellant for a second period of five years from and after July 31, 1911. The amount demanded by appellant in his present petition in ■ -intervention covered the monthly payments for the period extending from March 31, 1909, to July 31, 1911, and also the entire payments for the second period of five years from August 1, 1911, to July 31, 1916. The lease between the owner and the bank contained a clause giving the former the option to terminate the lease upon the insolvency of the lessee. After the appointment of the receiver, the owner demanded the termination of the lease under said clause, which was refused by the receiver. Litigation followed, in which a decree was made canceling the lease. In accordance with such decree the premises were delivered by the receiver to the owner on March 1, 1909. In a former suit the appellant recovered from the receiver the monthly payments of two hundred dollars up to the time of such cancellation of the lease.