Oliver v. Loydon

ANGELLOTTI, J.

This is an appeal by plaintiff - from a judgment given by the trial court in favor of defendant on the pleadings, the -motion for such judgment being based on the ground, among others, that the complaint did not state facts sufficient to constitute a cause of action.

The action was instituted on April 10, 1909, to recover the sum of $455; The complaint showed substantially the

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following facts: On November 14, 1908, plaintiff’s testator leased to defendant by an instrument in writing certain real property for the term of one year, commencing November 15, 1908, and ending November 14, 1909, in consideration of which defendant agreed to pay as rent seven hundred and eighty dollars in monthly installments of sixty-five dollars, payable in advance on the fifteenth day of each month during said term, and also agreed that he would keep the premises in good order and repair and pay all water, gas, electric light, and telephone rates. On November 15, 1908; defendant entered into the sole and exclusive possession of said premises,

“and has ever since remained therein,

and has paid all rents thereon up to and including the month beginning the 15th day of March, 1909, together with” the expenses of repairs and other sums agreed by him to be paid. “On or about the 9th day of April, 1909, the defendant renounced and repudiated the said lease and notified the plaintiff that he would no longer be bound thereby, and that he did then and there refuse and would continually refuse to pay any further rental accruing under said lease” or the other expenses and charges provided therein. It was further alleged “that the premises of the kind and character described in said written lease are not rentable during the months of April, May, June, July, August, September or October of any year; that plaintiff is and will be unable to rent said premises during said months, and that he will be compelled to permit said premises to remain unoccupied and unrented.” It was also alleged “that there is now unpaid upon said lease the monthly installment of sixty-five ($65.00) dollars per month for the months

beginning April 15, 1909,

and ending November 14,1909, and amounting to the sum of” $455. Judgment was sought for that amount.