Stevenson Brothers Co. v. Robertson

ALLEN, P. J.

The action was one by plaintiff corporation against defendant Robertson as constable, and his co-defendants as sureties upon his official bond, to recover the rent of certain premises from the twenty-second day of July, 1910, to and including the twenty-second day of December, 1910, at the rate of seventy-five dollars per month. Judgment went for plaintiff, from which, and an order denying a new trial, defendants appeal.

There is evidence in the record tending to show these facts: Plaintiff corporation, on May 28, 1909, leased to D- M. Bowman a certain store-room in the city of Imperial for the term of five years next ensuing after June 1, 1909, the rental stipulated being seventy-five dollars a month for twenty-one months after September 1, 1909, and ninety dollars a month for the three years next ensuing. The premises were let for a bakery and delicatessen store, with the right to maintain a soda fountain. The usual stipulations are found in the lease giving the right of re-entry for default in the payment of rent, and a covenant not to sublet without the written consent of the first party. Bowman took possession of the leased premises, and was conducting a restaurant therein on the twenty-second day of July, 1910, at which time a writ of attachment was issued in an action instituted by one Long against Bowman, and defendant Robertson, as constable, levied the same upon all of the property contained in said store-room, other than the soda fountain, Prior to the twenty-second day of July, Bowman by an instrument in

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writing sublet a portion of the premises to one Morgan, who operated the soda fountain and who owned the glasses and fixtures -connected therewith. Morgan occupied this portion-of the premises for sixty days after levy of the attachment, during which time the constable appointed him as keeper to look after the attached property. After the attachment was levied Long purchased from the Soda Fountain Company the fountain and Long agreed with Morgan that he might use the fountain, paying to Long rent for the part of the premises occupied. Morgan never paid Long anything for the use of the fountain. Defendant Robertson continued to occupy the remainder of the store-room as a place to keep the attached property. About two weeks after the levy of the attachment the secretary of the corporation, in a conversation with Robertson, asked him if he would look after the rent and he said he would take care of that, but in the conversation the secretary did not tell Robertson that he had any connection with the property, or that the corporation was in possession of it. Robertson did. not say he would be responsible for the rent. 'The president of the corporation, several weeks afterward, talked with defendant Robertson about the rent, the substance of which was that Robertson was to hold the money he derived from the sale of the- attached property until the rent was paid. It is further disclosed that plaintiff’s attorneys had erroneously advised defendant Robertson that he was allowed three dollars a day for caring for the property, which might be' utilized in the payment of rent. It is not a fact that any such allowance was due the constable, the only compensation for keeper’s fees being such as the court -may allow, and as to constables in no event exceeding two dollars per day. (See. 4300d, Laws 1907, p. 551.) There is no evidence tending to show any surrender of the premises by Bowman or any agreement as to a surrender, and no notice to quit other than one posted upon the premises in December, 1910, about the time defendant Robertson moved out of the store-room. After this notice to quit had been posted for a period of three days or more, plaintiff re-leased the premises to one Strong, who took possession,, at which time Robertson moved out the attached property. The evidence further tends to show that Bowman left Imperial a couple of weeks before the attachment suit