Cross v. Thiele

WORKS, J.

This is an appeal by the defendant M. T. Thoma from a judgment against her for the recovery of rents. Appellant leased from respondent, for a term of years, a certain furnished hotel. The lease provided for a monthly payment of a fixed rental and also contained a clause to the effect that the lessee should pay to the lessor as rental, but in addition to the fixed rent charge, one-third of the profits arising from the operation of the property. After she had been in possession of the hotel for a part of the term, appellant assigned the lease to the defendant Thiele. He retained possession until he was in arrears in the payment of the fixed rental for a period of five months, whereupon he surrendered the property to respondent, long before the expiration of the original term; without the knowledge of appellant. This action was commenced to recover the fixed rental due for the five months.

[1]

The appellant’s first contention is that the allegation of the complaint that the rent had not been paid was

[782]

denied by the answer and that there is no finding upon that issue. There is some doubt whether the denial in the answer meets the allegation of the complaint in the respect mentioned, but we pass that question and take up the claim that there was no finding upon the subject. There was no such finding, in terms, but there are several reasons why a reversal of the judgment need not result on that account. In the first place, it was stated in the conclusions of law that respondent was entitled to judgment in the exact amount alleged in the complaint not to have been paid. This conclusion was inconsistent with the idea that payment had been made and was therefore equivalent to a finding that it had not been made. Where an ultimate fact is to be ascertained, “it is none the less a finding of fact because it is stated as a conclusion from other stated facts.”

(Jones

v. Clark, 42 Cal. 180;

Harlan

v.

Lambert,

19 Cal. App. 349, [125 Pac. 1079].)