243 P. 453 | Cal. Ct. App. | 1925
Defendants appeal from a judgment against them for the amount of rent due under a lease in which they were lessees. The plaintiff was the lessor. While defendants were in possession of the leased farm land, which is situated in Imperial County, California, they defaulted in the payments of rent for several months, amounting to about $800. In response to a notice preceding an unlawful detainer action, they surrendered possession of the premises to the lessor.
By the terms of the lease the lessees agreed to pay $8,000 for the land from April 1, 1920, to July 31, 1923. The provision of the lease which is pertinent to the only substantial issue upon the appeal is as follows:
"Parties of the second part shall pay to party of the first part, as rental for the land hereinbefore described, the sum of $8,000, payable as follows: $1650.00 in cash at the date of the execution of this lease, receipt of which is hereby acknowledged, to be applied as follows: $400.00 to apply on the rent accruing during the first year of said lease, and the sum of $1250 as full payment of the rent accruing for the last five months of said term, the remainder of said rental being payable in monthly installments. . . ."
[1] There was no dispute between the parties as to the amount of rent due from the defendants at the time *787 the premises were surrendered up to the lessor, but defendants set up a counterclaim for the $1,250 paid by them at the time of the execution of the lease and which was paid "as full payment of the rent accruing for the last five months of said term." Defendants' claim is in effect: Where at the time of the execution of a written lease the tenant pays to the lessor a certain sum, which is stated in the lease to be in full payment of the rent for the last five months of the term, and thereafter, upon the tenant's failure to pay rent accruing, the lessor serves a three days' notice, demanding the payment of the rent due or the surrender of the premises, and the tenant thereupon surrenders the premises and the lessor takes possession thereof, the tenant may recover the advance rent so paid covering the last five months of the term.
The trial court decided against the defendants and appellants upon this proposition and such determination is supported by the case of Curtis v. Arnold,
In the case of Harvey v. Weisbaum,
There are also numerous authorities in other jurisdictions which are cited in the briefs which are in harmony with the foregoing decisions in this state.
[2] The only other point raised upon the appeal is that the trial court made no findings of fact with reference to the counterclaim of defendants. The trial court treated it as a cross-complaint and granted plaintiff's motion for a nonsuit as to it. If it be regarded as a counterclaim, it is obvious that no harm was done appellants by the failure to find thereon in view of the above determination as to the law applicable to the facts alleged therein. (Blochman v. Spreckels,
The judgment is affirmed.
Sturtevant, J., and Nourse, J., concurred.
A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 18, 1926. *789