Anderson v. Adler

WASTE, P. J.

Plaintiff brought this action to foreclose a chattel mortgage, given to secure the payment of the

[777]

term rent, and installments, to become due under a lease of a hotel building in San Diego, alleging the sum of thirteen thousand five hundred dollars to be due and unpaid on account of such rents. The trial court found that the terms of the original lease, as to the amount of the rent therein reserved, had been modified by an executed oral agreement, and entered its decree and judgment in favor of plaintiff foreclosing the mortgage for the sum of $3,333.35, with interest, attorney’s fees, and costs.

Upon the entry of this judgment, plaintiff filed a notice of intention to move for a new trial. This proceeding was decided by the court below on June 19, 1916, the court denying said motion. Plaintiff filed notice of appeal, both from the judgment and from the order denying his motion for a new trial.

[1]

The amendment of 1915 to section 963 of the Code of Civil Procedure (Stats. 1915, p. 209) does not allow an appeal from an order denying a motion for new trial. So far as that appeal is concerned, it is unauthorized and must be and is dismissed.

(Gray

v.

Cotton,

174 Cal. 256, [162 Pac. 1019].)

Appellant’s contention on appeal is that the court erred, in law and fact, in finding, as it did, that defendants were excused from full performance of the terms of the lease in question by reason of an executed oral agreement materially changing the terms of the original contract.

The lease was for a period of ten years, at a term rental of one hundred and fifty thousand dollars, payable in monthly installments of $1,250. The building was to contain approximately one hundred rooms, with suitable and sufficient halls, light courts, and light rooms, and a lobby, or entrance, to said building. As part of the consideration for the making of the lease, the lessees were to furnish and equip the building for hotel purposes, and were to give a chattel mortgage, upon the furnishings and equipment, to the amount of ten thousand dollars, as security for the term rent, installments of rent, and performance of the other conditions of the lease.