Lewis v. Fowler

FINCH, P. J.

The defendants have appealed, on a record prepared in accordance with the provisions of section 953a of the Code of Civil Procedure, from the judgment entered herein in favor of the plaintiffs. They have also appealed, on a bill of exceptions, from the order of the trial court denying their motion to vacate an order, made after entry of judgment, “permitting the plaintiffs to amend their third amended complaint and to strike from the files

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plaintiffs’ purported amendment to third amended complaint.” The two appeals have been consolidated and they were argued and submitted together.

June 23, 1922, the parties executed a written lease, by the terms of which the defendants leased to the plaintiffs the Fowler Apartments in the city of Los Angeles for a term of three years, commencing November 15, 1922, at a monthly rental of $200, payable monthly in advance. The lease provided for the payment of $200 at the time of its execution, which sum was so paid, and “$200' September 1, 1922, being two last months rent, and $200 when taking possession of said premises.”

The third amended complaint alleges the foregoing admitted facts, and, further, that at numerous times after the execution of the lease the plaintiffs tendered to the defendants payment of the sum of $200 due September 1, 1922, and demanded possession of the premises, but that the defendants refused to accept such payment or to admit plaintiffs into possession; that “plaintiffs have at all times been and now are ready, able and willing to comply with all of the conditions and covenants of said lease and pay to defendants the consideration therein named, and are ready to occupy said premises, but that defendants have refused to carry out said lease according to the terms and conditions therein provided, and refuse to let into possession the plaintiffs herein.” Among other things, the prayer is for judgment “that this lease be specifically performed and that plaintiffs be let into possession of said premises upon the payment by plaintiffs of the consideration as in said contract of lease provided.”

The answer admits the execution of the lease and the payment of $200 at the time of such execution. The remainder of the answer is as follows: “Defendants deny that at numerous, or at any time, or times, between the execution of said contract of lease and the commencement of this action, the plaintiffs tendered, or have tendered, defendants a further sum of $200.00, as in said contract provided, or otherwise, and defendants further deny that upon the alleged tendering of the aforesaid amount to defendants plaintiffs, or either of them, demanded that they be let into possession of the said premises on the 15th day of November, 1922, or at any time, or at all; defendants deny that plain