Rothrock v. Sanborn

LORIGAN, J.

In May, 1913, defendants, the Sanborns, leased to Mr. and Mrs. Kendis an apartment house in Los Angeles City consisting of twenty-five furnished apartments for a term of ten years, at a monthly rental of $496, payable on the first of each month of the term, in advance, The lease provided (paragraph 4) that it should not be assigned without in each case the written consent of the lessors. By subsequent paragraph—No. 12—it was provided that: “It is further understood and agreed that should the lessees desire to transfer or assign their interest in the within lease to other parties, that the lessors will give their consent, provided said party or parties deposit or give unto the said lessors a sum of money equal to the last three months’ rent of this lease, said last three months’ rent amounting to $1,488, said money to be paid to the lessors, their assigns or representatives at the time the written consent of the lessors as provided for in paragraph number four (4) of this lease

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is obtained, and in no case shall the lessors be obliged to consent to any transfer or assignment of this lease except as herein provided, and unless tenant is absolutely satisfactory to lessors.”

In November, 1913, the lessees, Mr. and Mrs. Kendis, assigned the lease to plaintiff and appellant, Nell L. Roth-rock, the defendants Sanborn consenting thereto by the following written instrument: “And we hereby consent that the said lease may be transferred by the said Mr. and Mrs. A. P. Kendis to Mrs. Nell L. Rothrock. This consent shall not be treated in any way as waiving any of the provisions of said lease, nor shall the same be assigned or transferred by the said Mrs. Nell L. Rothrock to any person, without our consent first being had and obtained, and then only according to the provisions of paragraph XII of said lease. ’ ’ And concurrently with the execution of this written consent the original lessees, the Kendises, delivered to the defendants Sanborn, the lessors, the sum of $1,488 in compliance with the provisions of said paragraph 12 of the lease.

In March, 1914, said Nell L. Rothrock desired to assign said lease to one M. A. Merrill and sought the consent of said lessors Sanborn, who refused to consent thereto unless they were again paid $1,488, which they claimed they were entitled to under said paragraph 12 of the lease; the said Rothrock objected to doing this, but the «defendants insisted, and in order, so it is alleged, to prevent the loss of a large profit in a deal whereby said lease was to be transferred to said Merrill in exchange for some real estate, and, under protest, said Nell L. Rothrock made and delivered to defendant B. B. Alexander, as agent of the other defendants Sanborn, her cheek for five hundred dollars and her promissory note for $988, which were still in his hands when this suit was commenced.