McNeece v. Wood

THE COURT.

This is an appeal by the defendant Wood from a judgment declaring forfeited a lease on the McNeece building in the city of San Diego.

By written instrument dated November 1, 1920, the plaintiff leased to the defendant Wood the building in question, which is a business block in said city. On February 17, 1923, Wood subleased the upper four floors to Mrs. Jennie H. Hipwell. Mrs. L. E. Geoghegan, a daughter of Mrs. Hip-well, became manager and had charge of the renting of

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rooms of that portion of the building leased to her mother. On November 20, 1925, Mrs. Geoghegan rented room number 438 to Bradley and O’Brien, who took possession of the room two or three days later. One Logan was employed by Mrs. Geoghegan to operate the elevator in the building and was acting as such at the time of the transactions involved herein. Logan was also employed at the same time by the defendant Wood to keep watch and report to Wood any infractions of the law or other things not proper and right about the building. Bradley and O’Brien installed telephones in room 438 and started bookmaking operations. It is conceded by all parties that the operations of Bradley and O’Brien in said room were in violation of section 337a of the Penal Code. Logan became suspicious of the conduct of Bradley and O’Brien and endeavored to notify defendant Wood, but was unable to locate him. He then notified the police department of what was going on in said room. After the lapse of four or five days the room was raided by the police. The raid took place on December 1, 1925, the guilty parties were apprehended and prosecuted and the unlawful business ceased to be carried on in said room.

The defendant Wood subleased a room on the ground floor to one Joe England, who conducted a restaurant therein. England employed one Shepard to look after the restaurant during certain hours of the night. On the evening of June 19, 1926, police officers visited the restaurant to search the same for contraband liquor. Shepard was in the restaurant at the time. Five pints of whisky were found on the premises by the officers. Shepard was arrested and he entered a plea of guilty to the charge of unlawful possession.

On December 18, 1925, the plaintiff served written notice of the forfeiture of the original lease on the defendant Wood and his subtenants and twelve days later filed suit to have the forfeiture declared and possession restored to the lessor. Subsequently the plaintiff by way of supplemental complaint filed on July 2, 1926, set up the alleged unlawful possession of liquor on the part of Shepard on June 19, 1926. The cause was tried and the court declared the lease forfeited for breach of the following covenant of the lease: