In re the Estate of Bell

Vanclief, C. This is an appeal from an order rejecting in part the claim of T. J. E. Scoones against the estate of the insolvent, under the following circumstances: —

Scoones executed to Bell a lease of a certain room in San Diego for the term of twenty-seven months, from January 15, 1888, at the monthly rent of $225, payable monthly, in advance, on the fifteenth day of each month, during the term, the lessee covenanting to pay the rent and to quit and surrender possession at the expiration of the term, or any sooner determination of the lease, and [120]also, that, in case of default in payment of rent for five days, the lessor, at his option, may re-enter and terminate the lease.

Bell entered into possession under the lease, and paid the rent until July 15, 1888; but on July 29, 1888, lie left and vacated the premises, declaring his intention to abandon the premises, and to repudiate the lease, and to pay no further rent. Upon the vacation of the premises by Bell, the lessor — Scoones — re-entered and endeavored to relet the premises without delaj’-, for the residue of the term, for the benefit of Bell; “but in so doing did not in any way release or discharge the said Bell or his estate from any liability under the covenants of said lease.”

Scoones did not relet the premises, however, but states in his affidavit that they are now of no greater rental value than $75 per month, and that he will not be able to let the same during the remainder of the term for more than $75 per month, “ whereby he is damaged in the sum of $3,675.”

His claims, which he asks the court to allow against the estate of the insolvent, are $112.50 for rent due under the lease from July 15 until August 1, 1888, and $3,675 for “ damages sustained by him, by reason of the said insolvent’s repudiation of the said lease and breach of covenants of the same.”

The court allowed the claims of $112.50 for rent, but rejected the claim of $3,675 for damages. In this I think the court did right.

Section 37 of the Insolvent Act of 1880 provides: “All debts due and payable from the debtor at the time of the adjudication of insolvency, and all debts then existing, but not payable until a future time, a rebate of interest being made when no interest is payable by the terms of the contract, may be proved against the estate of the debtor.”