Peninsula Rapid Transit Co. v. Santa Clara Valley Land Co.

LANGDON, P. J.

This is an appeal by the defendant from a judgment against it in an action for rent due under a lease. The judgment followed the entry of defendant’s default. A general demurrer was interposed to the complaint and overruled. The defendant failed to answer and contends, upon appeal, that the demurrer was improperly overruled. The only point presented is as to the sufficiency of plaintiff’s pleading.

The points urged in support of the demurrer are that the complaint contains no allegations that the defendant leased the premises from plaintiff; that the defendant was ever in possession of the premises or ever promised or agreed to pay the rent reserved in the lease.

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The complaint alleges: ‘ That on or about the 31st day of March, 1923, plaintiff ... as lessor and defendant . . . as lessee, entered into an indenture of lease wherein and whereby the plaintiff demised and let to defendant a certain store room known as No. 3 in the Union Stage Depot located on the west side of Market Street, between Santa Clara street and Post street, in the city of San Jose, County of Santa Clara, State of California, being the second most northerly store room on the ground floor in said Union Stage Depot and known as No. 25 South Market Street in the City of San Jose, for the term of three years after date of completion of the building in which said room is situated, at and for the monthly rental of $200.00' per month, payable monthly in advance; that said building was completed and the time of commencement of said term of said lease was May 1st, 1923; that no rent has been paid under said lease since January 1, 1924, and there is now due plaintiff from the defendant rent from. January 1st, 1924, to May 1, 1924, in the sum of $800; which is unpaid.”

Certainly this complaint is not a model of good -pleading, but we do not think its deficiencies are such as to compel a reversal of this judgment. While there is no allegation, in so many words, that the defendant leased the store from plaintiff, there is an allegation that defendant,

as lessee,

entered into the lease. This is admitted by the demurrer and defendant could not be the lessee under a lease unless it leased the store from plaintiff.