Security Trust & Savings Bank v. Claussen

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

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

[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., 175 Cal. 652 , [ 166 Pac. 1006 ].) “This rule is based upon the supposition that the first suit was effective, and afforded an ample remedy to the party, and hence that the second was unnecessary, and as a consequence vexatious.” (Dyer v. Scalmanini, 69 Cal. 637 , [ 11 Pac. 327 ].) There is nothing in the judgment, rendered in the former suit which affects the existence or integrity of the lease. Assuming the judgment to be a final determination of the subject of that action, the lease would constitute the 'basis of subsequent actions by plaintiff upon which to assert its right to recovery of rent for subsequent months of the term. In support of his contention, appellant has cited Baker v. Eilers Music Co., 175 Cal. 657 , [ 166 Pac. 1008 ]; Williams v. Hawkins, 34 Cal. App. 146 , [ 166 Pac. 869 ], and Wiese v. San Francisco Musical Soc., 82 Cal. 645 , [ 7 L. R. A. 577 , 23 Pac. 212 ], none of which, however, is applicable to the facts in this case, for the reason that the judgments therein rendered were in favor of the defendants and the effect thereof was to destroy and nullify plaintiffs’ right to recover in the subsequent actions. If final, the judgment could be interposed as a plea in bar, and if pending on appeal therefrom by plaintiff, then as a plea in abatement, for the reason that if affirmed it would operate as a final determination of the subject of the subsequent action, and hence there would be nothing to litigate. Assuming,

At the risk of being criticised for indulging in dictum, 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 1611 of the Civil Code provides: “When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth.” The object of the contract was the rental value of the premises and the consideration of the tenancy when impaired by the passage of the liquor ordinance was not determined by the contract, nor any method specified therein by which it was to be ascertained, other than leaving it to the discretion of the lessor, who was an interested party; hence, under this provision of the code, if the parties were unable to agree upon the reduction proper to be made, the subject, under proper allegations in the nature of an equitable action, should be submitted to the court in an action to have it determine the reasonable rental value of the premises for the remainder of the term, and

The judgment is affirmed.

Conrey, P. J1., and James, J., concurred.