Pigg v. Kelley

SHAW, J.,

pro

tem.

The defendants appeal from a judgment against them. The record on appeal was prepared under section 953a et seq. of the Code of Civil Procedure. The appellants have printed in their brief the entire judgment-roll, but nothing purporting to be a statement of the evidence. However, the respondents concede that the evidence was entirely documentary and that all of the documents are set out in the findings, and hence we conclude that the parts of the record printed in appellants’ brief are sufficient for a determination of the appeal.

To state very generally the nature of the controversy, this action was brought by the plaintiff Carrie D. Pigg, as purchaser of certain real property on which a lease was outstanding at the time of her purchase, to recover from the defendants, who were the sellers, rents which defendants had received under the said lease prior to the sale, and which said plaintiff claims under the provisions of the agreement of sale. From the findings the following facts may be gleaned: On May 1,' 1922, the defendants, as owners of the real property above mentioned made a written lease thereof to Leo Kanner and Aaron Greshen for a term of five years, at the rental of $16,800, payable in monthly installments of $200 per month for the first year and $300 per month for the last four years. The lease contained the following provisions: “Receipt is hereby acknowledged of the payment of $800.00, representing the first and last two months’ rent paid in advance; $600.00 of said amount to be retained as a forfeiture by the parties of the first part if the terms of the lease are violated.”

The object of this action is to recover the sum of $600 mentioned in the quoted provision of the lease. Although the plaintiffs in their complaint alleged that said sum was a payment of rent, on this appeal they contend that it was a deposit by way of security, and that since it is such security, and they have taken an assignment of the lease and agreed to perform all of the lessor’s covenants, they are entitled to the security. Defendants admitted by their answer, and still contend, that this $600 was an advance payment of rent. It thus appears that there was no issue

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raised as to the nature of this payment—notwithstanding which, the court in its findings declared that said sum of $600 was paid as security for the faithful performance of the conditions of the lease. But since the entire lease was copied in the findings, this statement must be regarded as a mere legal conclusion, setting forth the opinion of the court as to the construction of the lease. We think the construction so. adopted is erroneous. The provision of the lease is that the $600 is “rent paid in advance.” This provision is not altered or affected by the later provision that it is to be retained by the lessors as a forfeiture if the terms of the lease are violated. Without the latter provision the lessors would be entitled to retain any advance payment of rent if the tenants’ violation of the lease led to a termination thereof. “Rent paid in advance cannot be recovered by the tenant upon the termination of the lease for condition broken, where such termination is not brought about by the wrongful act of the landlord.”