Reiter v. Rothschild

TEMPLE, C. Appeal from judgment and order denying new trial. From the findings and undisputed evidence it appears that on December 29, 1886, Henry Bothschild by indenture leased to the plaintiff the premises known as No. 835 on Sacramento street, San Francisco, for the term of three years and five months, beginning January 19, 1887, at a monthly rental of $125. On the same day the parties to the lease executed another instrument in writing, wherein it is recited as follows:

“And whereas, as security for the prompt payment of the rent therein reserved and agreed to be. paid by the said party of the second part to the party of the first part, at the times and on the conditions therein mentioned, and to and for the faithful compliance on her part with and performance of all the terms, covenants, promises, and agreements mentioned and set forth in the said lease, which said lease is here referred to and made a part of this agreement, the said party of the second part has paid to, deposited, and left with H. Bothschild the sum of five hundred dollars ($500) in gold coin, to be kept, used and employed by him only for the uses and purposes herein stated: Now, this agreement witnesseth that if the said party of the second part shall [well] and truly pay all rents and perform and execute all the promises, covenants, [105]and conditions of the said lease, as therein contained on her part, then, and in that event, at the expiration and completion of the term of said lease, the said H. Rothschild hereby agrees to pay back the said sum of five hundred dollars ($500) to the said party of the second part.”

■ It was further stated that, in case the tenant did not perform her covenants, Rothschild was authorized to retain the $500 as liquidated damages. On the same day Mrs. Reiter delivered the money to Rothschild, receiving the following receipt:

“Received, San Francisco, December 19, 1886, of and from Catherine Reiter, the sum of five hundred dollars, to be kept, used, and employed by me according to and upon the terms and conditions of the foregoing agreement, and in pursuance thereof.

“H. ROTHSCHILD.

“Witness: E. C. HISGBN.”

Mrs. Reiter entered into possession under the lease, occupied the premises for the full term, and upon its termination, June 19, 1890, quietly surrendered the premises to the representatives of H. Rothschild. It is agreed that she paid her rent when due, and did in all respects perform all the agreements, promises, conditions, and covenants on her part in the lease. * Before the expiration of the term, however, to wit, May 4, 1889, Henry Rothschild died testate, and on May 24th of the same year his widow, Hannah Rothschild, was appointed executrix of his will. The usual notice to creditors was published by her prior to June 24, 1889. June 10, 1889, Hannah Rothschild, as executrix of the will of Henry Rothschild; returned and filed an inventory of said estate, verified by her oath, as required by law, in which the following appears: “Moneys belonging to said deceased which have come to the hands of the executrix as follows: Cash, $1,307.50; $500, held as security for lease from Catherine Reiter, paid December 29, 1886, $500.00.” The verification states that the foregoing inventory contains a true statement of all the estate of said deceased which has come to her knowledge and possession, and particularly of all moneys belonging to said deceased. No claim of any kind was ever presented by plaintiff, or for her, against the estate of Henry Rothschild, deceased.