Pringle v. Fassler — 176 Cal. 264

Majority

p. 264

[S. F. No. 7570.

Department One.

October 9, 1917.]

S. J. PRINGLE et al., Respondents, v. JOSEPH FASSLER, Appellant.

Headnote

Landlord and Tenant—Action for Rent—Pleading—Sufficiency of Complaint.—In an action to recover rents due upon a lease, which, contained' no conditions precedent to be performed by the lessors in order to impose upon the lessee the obligation to pay the rent, except the delivery of possession of the property and the enjoyment thereof by the lessee during the time for which the rent sued for accrued, the complaint sufficiently alleges performance of such conditions by alleging the execution of the lease, that defendant took possession, had remained in possession, had failed to pay the rents due, and that the same remained' unpaid.

p. 265

Appeal—Purposes of Delay—Damages.—Where there is no merit in an appeal and it has no object other than vexation and delay, it is proper to exercise the power given by section 957 of the Code of Civil Procedure to add to the costs such damages as may be just.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

Jas. P. Sweeney, for Appellant.

James M. Shields, for Respondents.

The defendant, Joseph Fassler, appealed from the judgment in favor of the plaintiffs, taken upon the default of the defendants.

The action is to recover rents alleged to be due from the defendant, Fassler, to the plaintiffs, upon a lease executed by the plaintiffs to Fassler, of certain property in San Francisco, and upon a bond executed by the two defendants to secure the rents accruing upon said lease. The complaint alleges the execution of the lease; that the defendant Fassler immediately went into possession of the property and has ever since remained in possession; that the defendant Fassler failed to pay the rents due upon the lease, amounting to $2,937.52, and that the same remain unpaid. A copy of the lease was made a part of the complaint, and is set forth in the record.

The only point alleged in support of the appeal is that the complaint is insufficient in its statement of facts, because it does not allege that the plaintiff had performed all the conditions precedent imposed by the lease upon himself.

There were no conditions precedent to be performed by the lessors in order to impose upon the lessee the obligation to pay the rent, except the delivery of possession of the property in pursuance of the lease, and the enjoyment thereof by the lessee during the time for which the rent sued for accrued. These conditions are specifically and expressly alleged. There is no merit whatever in the point presented nor in the appeal. It could have had no object other than vexation and delay, and the case calls for the exercise of the power of this court to add to the costs such damages as may be just. (Code Civ. Proc., sec. 957.)

p. 266

The judgment is affirmed, and it is ordered that the plaintiff recover of the defendant Fassler, as a part of the costs of appeal, the sum of one hundred dollars.

Sloss, J., and Lawlor, J., concurred.