Fratt v. Hunt

Garoutte, J. Francis W. Fratt, as the owner of certain hotel property situated in the city of Sacramento, leased the same, including furniture, etc., to one Sherwood for the term of five years, at a stipulated rental per month. This contract of lease contains the following provision: “And it is agreed by the party of the second part that, at the expiration of said term, or the sooner termination thereof, he will return to the party of the first part all the furniture, fixtures, bedding, gas fixtures, and all other articles described in said inventory A, according to the inventory therein mentioned, in as good condition as said articles now are. Any window glass that may be broken must be replaced by said second party, with glass of equal quality, at his expense, and at the expiration of said term the said party of the second part will quit and surrender the said premises in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.” Inventory “A” contained a statement in detail of the personal property aforesaid.

Hunt, the defendant’s testator, in writing, guaranteed the faithful performance of the covenants of the lease upon the part of Sherwood. Prior to the expiration of the five-year term, Hunt, the guarantor, died, and thereupon Fratt presented a claim, to the defendant as executrix of his estate, for: 1. Balance due for rent already accrued; 2. Amount of rent hereafter to become due prior to the expiration of the lease; 3. A contingent liability, to wit, “For any damage claimant may sustain by reason of any injury which may be done to any of the personal property described in said inventory or schedule B, hereto attached, and also for any damage which claimant may sustain by reason of the nondelivery or return to him of any of the property described in said schedule B, but the amount of such damage this claimant is at this time unable to state.” The aforesaid claim set out the guaranty of Hunt and the facts in detail concerning the transaction. Both the absolute and contingent claim for rent were allowed by the exec[291]utrix, but the contingent claim for damages for loss and injury to furniture, etc., was rejected. Thereupon this action was brought upon the claim as presented, and a general demurrer to the complaint was interposed, and sustained by the trial court. The sole purpose of this appeal appears to be to test the ruling of the court in sustaining that demurrer.

In so far as the claim was for rent due and to become due it was approved by the executrix; hence, no cause of action could be based upon it in those particulars; and that portion of the complaint wherein it is sought to recover a judgment for rents was clearly susceptible to a general demurrer. Plaintiff also sued to recover a sum of money as damages for broken panes of glass, but, inasmuch as Sherwood agreed to replace all such glass upon the expiration of the lease, an action for such damage prior to that time was clearly premature. The complaint contains the following allegation: “Plaintiff alleges that, before the filing of the complaint to which this is amendatory, the said T. J. Sherwood had carelessly and negligently permitted a large amount of personal property, furniture, and fixtures leased with said hotel, and described in exhibit B, attached to said complaint, to become utterly lost and destroyed; that said personal property, furniture, and fixtures, so lost and destroyed, was, at the time of said loss and destruction, of the value of $1,0U0, as this plaintiff is informed and believes; that, by reason of said loss and destruction of said personal property, this plaintiff was damaged in the sum of $1,000, as he is informed and believes. The plaintiff further alleges that the personal property, furniture, and fixtures described in said exhibit B, which was at the date of filing said complaint and still is in the said Union Hotel, and which consists of all of said personal property, furniture, and fixtures in said exhibit described, except such as has been lost or destroyed as aforesaid, was during the continuance of said lease, and while the same was in the possession of said T. J. She wood, by his carelessness and negligence greatly injui