Kennedy v. Morrison

MUSSELL, J. This is an appeal from a judgment entered on sustaining demurrers without leave to amend in an action for attorneys’ fees.

Plaintiff as lessor, and defendants Morrison and Phipps as lessees, entered into a written lease of real property in the city of San Diego. The lessees, with the written consent of lessor, assigned the lease to defendants George and Genell Styliano who conducted a business on the property known as the “New Paris Inn.” The Stylianos took possession July 1, 1946, and operated the business until October 27th, at which time they ceased to pay rent, committed other breaches of the lease, closed and locked the doors and ceased to operate the establishment.

The present action is for attorneys’ fees for legal services rendered to plaintiff, as lessor, in litigation arising by reason of the breach of the provisions of the lease by the defendants and is based upon the provisions of paragraph 19 thereof, which is as follows:

“Litigation Involving Lessor—Lessees agree that should Lessor be made a party, without his fault, to any litigation brought by or against Lessees, or any of them, or because of the violation of or the refusal by Lessees to perform or observe any one or more of the covenants or conditions of this lease on their part, or should Lessor be compelled to employ an attorney or agent to enforce the payment of rent, or to enforce the performance or observance of any of the covenants [518]or conditions of this lease on the part of Lessees, or to recover possession of the leased premises or any part thereof, then, and in each and every such instance, Lessees will pay the amounts reasonable incurred or expended by Lessor, including a reasonable fee to such agent and/or attorney, and the expense of preparing and serving any notice or demand required or permitted by law; and that the same will be so paid upon demand, or may be included as a part of the judgment in any action or proceeding then brought or pending, or in any separate action brought for that purpose. In the event a declaratory relief action should be filed in which the Lessors and Lessees are parties and in which this lease would be involved, the court shall on final judgment award to the prevailing or successful party reasonable attorneys fees.”

The lease contains the following language in paragraph 12:

“Lessees, contemporaneously with the execution of this lease, have executed a chattel mortgage to Lessor covering all of said fixtures, furniture, furnishings and equipment to secure the faithful and prompt performance of all the terms, conditions and covenants contained in this lease.”