Bush v. Bastian

CONREY, P. J.

The plaintiff executed to appellant a five-year lease of real property, consisting of a lot and several unfurnished bungalows. Appellant furnished the bungalows, and executed to the plaintiff as security for performance of the covenants of the lease a chattel mortgage on the furniture. Thereafter appellant assigned said lease to the defendant Herbert. In connection with said assignment appellant agreed with plaintiff that appellant would continue to be bound by the terms of the lease. On February 10, 1925, three and one-half months’ rent being at the time delinquent, the complaint alleges that the defendants vacated and abandoned the premises, and that the plaintiff informed each of them that she would endeavor to lease the premises and keep them rented for and on account of the defendants, and if the amounts received were insufficient to meet the obligations of the lessees under the lease, plaintiff would hold them accountable for the difference; that pursuant thereto plaintiff did endeavor to keep the premises rented for and on account of the defendants and each of them, and by reason thereof received certain rentals. This action.was brought to recover the difference between the net amount received (after paying certain necessary expenses) and the accrued rent for the time to and including the month of October, 1926. The principal litigated issue relates to said alleged abandonment of the premises and the conduct of the plaintiff on reassuming possession after the alleged abandonment. On these issues the decision of the trial court was in favor of the plaintiff.

The chattel mortgage provided that the mortgagee might take possession of the mortgaged property upon failure of appellant to pay rents when due. Upon the fifth day of February, 1925, by reason of rent being unpaid at that time, plaintiff commenced an action for possession of the mortgaged personal property. The writ of replevin was issued. On February 10th, the sheriff, proceeding under said writ, took possession of said personal property on the leased premises. According to the testimony of the plain

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tiff she went to the'premises at that time but did not take possession of anything. The sheriff was there proceeding under the writ and Mrs. Herbert was “packing to leave”. Plaintiff came back the following day and found that Mrs.' Herbert had moved away and the premises were unoccupied.