187 P. 142 | Cal. Ct. App. | 1919
In this action plaintiff sued for rent of $150 a month, alleged to have accrued under the terms of a written lease for the months of November and December, 1918, and January and February, 1919. As prayed for, the court gave judgment in favor of plaintiff for six hundred dollars, from which defendant appeals.
As shown by the complaint and answer, the facts presented, other than the months for which the recovery of rent is sought, are identical with those involved in same title, No. 3073 in this court, wherein an opinion was this day filed. As in that case, this action is based upon a lease, the execution of which and nonpayment of any sum whatsoever as rent for the months of November, December, January, and February is admitted. The facts set forth *732 in defense of plaintiff's right to recover are identical with those contained in the answer in the former case. Defendant offered evidence as to the reasonable rental value of the premises for the months specified in the complaint, to which plaintiff's objection was, for the reasons given in the opinion in No. 3073, properly sustained.
In addition to the matters there set up as a defense, the defendant in this action alleged — for what purpose it is not made to appear — that the former suit involved the same cause of action as that set forth in the complaint herein, and that judgment therein was duly given and made against the defendant, "declaring that the lease upon which plaintiff sues herein had been modified, and that plaintiff was entitled to recover from the defendant the reasonable rental value of said premises only, and that the reasonable rental value thereof was forty dollars per month"; in support of which the judgment-roll in No. 3073 was introduced in evidence. As to this allegation the court, upon sufficient evidence, made an adverse finding to the effect that the causes of action were different; that while it was true that a judgment was rendered therein against defendant (from which an appeal by plaintiff is pending), wherein it was adjudged that the reasonable rental value of the property for the months named in that action was forty dollars per month, for which judgment was rendered against defendant, it was not adjudged that the lease upon which plaintiff sues herein was modified or changed in any respect.
[1] As stated, the record fails to disclose the purpose for which the allegation as to the former adjudication was inserted in the answer. However this may be, and conceding that since an appeal therein was pending, it could not be pleaded as a bar, appellant, without showing that such relief was asked for in the trial court, now insists that there should have been an abatement of this action pending the determination of the former case on appeal. We perceive no merit in the contention. As appears from the judgment-roll introduced in evidence, the question as to the modification of the lease was not involved in the action. Neither party asked that the terms of the lease be modified. In its complaint plaintiff stood thereon. All the findings, except as to the amount of rent due for the months named in the complaint, as to which the court found the reasonable rental *733 value therefor was forty dollars per month, were adverse to defendant, as to whom, since he did not appeal therefrom, the judgment was final and binding. The judgment did not, as claimed by appellant, purport to fix the rental value of the premises for subsequent months of the demised term, the reasonable value of which, owing to fluctuation and change of conditions, might be more or less. Moreover, accepting appellant's theory that the judgment should be construed as fixing the value of the lease for the balance of the term at forty dollars per month, he, nevertheless, admits that he neither paid nor tendered anything on account thereof. Then why should plaintiff be compelled to forego the right to enforce payment of what concededly was due?
[2] A plea in abatement based upon the fact that another action is pending is open only when the identity of the matters involved in the second action is such that the judgment in the first, if final, could be pleaded as a former adjudication. (Baker v. Eilers Music Co.,
At the risk of being criticised for indulging indictum, we deem it not improper to state that by the terms of the lease the parties thereto contemplated that a law prohibiting the retail sale of liquor upon the premises might be enacted, by reason whereof the rental value of the property might be impaired, in which case the lessor undertook and agreed that she would make such reduction of rent as she might deem proper at the time. In other words, when the contingency arose she would, for the remainder of the term, reduce the amount of the monthly installments of rent to such sum as would under the circumstances be reasonable, such reduction to be fixed and continue as the measure of defendant's obligation throughout the remainder of the term. It was not contemplated, in the absence of an agreement therefor, that a different rental, due to periodical fluctuations in value, should be exacted from month to month, depending upon what the court in such actions deemed reasonable.
[3] While the undertaking of the lessor was to make such reduction as she deemed proper "at that time," nevertheless she was an interested party. Section
The judgment is affirmed.
Conrey, P. J., and James, J., concurred.