12 F. Supp. 446 | D. Nev. | 1935
Phelan Improvement Company filed a claim with the referee in the sum of $17,-635.49. Of this amount $2,380 was claimed for rent of certain premises in San Francisco, Cal., for the month of October, 1932. Against this amount the claimant allowed a deduction of $1,064.41 paid by the receiver after bankruptcy for use and occupancy of the premises from October 10, the date of the adjudication, to October 31. The remainder of the claim was a claim for damages based upon the difference between the reasonable rental value of the premises on November 1, 1932, and the rent required to be paid for the remainder of the term under the lease. Upon the trustee’s objection, the referee disallowed the claim except as to the sum of $690.98 to cover the rental from October 1 to October 10, 1932.
The Douglas Realty Company filed -its claim for $1,435.49, being rental claimed for premises in San Francisco, Cal., for the month of October. The rental of the property was. $2,500 per month, against which the claimant allowed the deduction of $1,064.51 of the sum received from the receiver for use and occupancy. The referee allowed the claim in the sum of $729.79 only.
The disallowance of the claim of the Phelan Improvement Company for the portion of its claim which sought recovery of uncertain and unliquidated damages for the remainder of the term is now conceded to be correct in the light of the rulings in Manhattan Properties v. Irving Trust Co. (1934) 291 U. S. 320, 54 S. Ct. 385, 78 L. Ed. 824, and Ouinn v. Jaloff (C. C. A. 9, 1934) 71 F.(2d) 707.
The objection in each instance is therefore reduced to the objection to the failure of the referee to allow the rental for the entire month of October. By the terms of each of the leases, the total rental is made payable'in equal monthly installments “in advance on the 1st day of each and every month during the said term.” The leases being made in California, and involving property located in California, the question must be determined according to the law of California. Under that law, where, under the provisions of a lease, the monthly rental is due upon a certain day of the month, the right of the lessor to receive it is determined as of that day. And there can be no apportionment of the rent if, subsequent to the due date and before the expiration of the month, there be a termination of the relationship. In Title Insurance & Trust Co. v. Amalgamated Oil Co. (1923) 63 Cal. App. 29, 218 P. 71, the court had under consideration a lease which provided for a graduated rental. The rent provided for the month of February, 1921, was $1,600, payable on February 1, 1921. The lease contained a provision allowing the lessee to terminate the
We do not think that the acceptance by the claimants of rental from the receiver for the remainder of the month upon a different basis should deprive them of the right to receive from the bankrupt estate the rental to which they became entitled on October 1, 1932. From this rental, of course, should be deducted the amounts received from the receiver. The claimants were always willing that this should be done. It follows that the claim of the Phelan Improvement Company should have been allowed in the sum of $1,315.39, and the claim of the Douglas Realty Company should have been allowed in the sum of $1,439.49.
The orders heretofore made by the referee are therefore modified, and the claims allowed in the sums just given.