Stetson v. Briggs

Belcher, C. The plaintiff brought this action to recover the sum of three hundred and seventy-five dollars, alleged, in two separate counts, to be due for the second installments of rent on two leases executed by plaintiff to defendants on land in Kern county, one tract described as a certain section 20, and the other as the north half of a certain section 7. Copies of the leases are attached to the'complaint, from which it appears that they were both executed April 2, 1892, for the term of one year from February 1, 1892, to February 1,1893, [513]and that the rent to be paid on the one first named was four hundred dollars, and on the other three hundred and seventy-five dollars, one-half of each sum being made payable on July 1, 1892, and the other half on. October 1, 1892. It further appears that each lease contained the following provision: “And the said parties of the second part do hereby promise and agree to pay to the said party of the first part the said rent herein reserved in the manner herein specified, and not to let or underlet the whole or any part of said premises; .... and' not to assign this lease without the written consent of the said party of the first part.” Indorsed on the last-named lease was an assignment, dated April 2, 1892, and signed by defendants in these words: “ For value received, we hereby assign, transfer, and set over to Lizzie K. Masteller all our right, title, and interest in and to the within lease.” And following this was another indorsement, signed by Mrs. Mas-teller; in these words: “I hereby agree to fulfill the terms of the within lease.”

The defendants, by their answer, denied that there was any rent due plaintiff from them on the first lease set out, and alleged that they had fully performed all the covenants and conditions therein to be performed by them, and had paid to plaintiff all sums of money mentioned and due from them thereunder. And, as to the second léase, the answer denies that defendants are bound thereby, or that they, or either of them, are indebted to plaintiff in any sum of money, or at all, by reason of said lease. It then, as an affirmative defense, alleges in effect that on April 2, 1892, one Houghton, who was plaintiff's agent in Kern county to lease his lands and collect the rents, had in his hands the draft of the said lease, signed by plaintiff,, and in which defendants were named as lessees, but that, as defendants did not want the land, Houghton requested them to sign the lease and then assign it to Mrs. Masteller, and thereby avoid making out a new lease and sending it to San Francisco to be signed by plaintiff, where plaintiff