Schehr v. Berkey

MELVIN, J.

The Lyon-McKinney-Smith Company, a corporation, one of the defendants, appeals from a judgment in favor of plaintiffs and from an order denying its motion for a new trial.

In 1908 L. E. Berkey and Katherine S. Berkey, his wife, leased from Mary Schehr, one of the plaintiffs, a certain apartment house in the city of Los Angeles. The written contract of lease provided for a tenancy of five years from and after June 1, 1908, at a rental of $23,628, payable in monthly installments. Coincident with the signing of this contract the lessees executed in favor of Mary Schehr a chattel mortgage covering the furniture in the apartment house and given to secure the performance of the lease and providing for the payment of damages in the event of a breach thereof. This chattel mortgage was duly recorded on the day of its execution, May 19, 1908. On or about the twentieth day of May,

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1908, a chattel mortgage was made, executed, and delivered by the Berkeys to the Lyon-MeKinney-Smith Company, to secure the payment of a certain promissory note. This latter mortgage was upon the same property theretofore mortgaged to Mrs. Schehr. Thereafter the Berkeys assigned their lease to C. N. Gary, who in turn assigned it to H. C. MeCuliey. The rent was duly paid for a time by the original lessees, the Berkeys. From December 1, 1908, to March 1, 1909, it was paid by Gary; and from March 1 to April 1, MeCuliey paid it. No rent was paid thereafter, and on June 11, 1909, plaintiffs brought an action in unlawful detainer against MeCuliey, who was in possession of the property. Judgment was given for the amount of the three installments of rent which the court trebled, as provided by statute, and the plaintiffs were restored to possession. The Berkeys were originally made parties to the action, but subsequently it was dismissed as to them and the judgment was against MeCuliey alone. Thereafter plaintiffs brought this present action to foreclose the mortgage for the purpose of paying the damages sustained by them on account of the breach of the contract of lease. MeCuliey, Gary, the Berkeys, this appellant, and others were made parties defendant, and the original complaint alleged damage in the sum of eight thousand dollars. On the trial, however, the court held that a provision in the lease for liquidated damages to the amount of five thousand dollars controlled, and gave judgment foreclosing the mortgage for that sum. A motion for a new trial, made by the Lyon-McKinney-Smith Company was granted and the cause was again tried between the plaintiffs and that corporation. It was stipulated that the rental value of the premises from the time of recovery under the suit against MeCuliey until the end of the term was not more than three hundred dollars a month, and the court found that plaintiffs were entitled to the difference between the rent reserved in the lease for that period and a rental of three hundred dollars per month for the same time—something more than six thousand dollars. Plaintiffs, however, remitted all in excess of five thousand one hundred and fifty dollars together with costs and attorney’s fees, and judgment was given for that amount.