Nelson v. Angel

Citation269 P.2d 626,124 Cal.App.2d 861
PartiesNELSON v. ANGEL et al. Civ. 15551.
Decision Date30 April 1954
CourtCalifornia Court of Appeals

Charles A. Christin, J. W. Radil, San Francisco, Oswald A. Hunt, Oxnard, Rhein, Dienstag & Levin, Edward Dienstag, Jay Jackson, Jr., San Francisco, for appellant.

Philander Brooks Beadle, Morton L. Silvers, San Francisco, for respondents.

FINLEY, Justice pro tem.

This is a second appeal in this action by plaintiff. In this instance it is from the judgment entered upon a jury verdict in favor of defendants. The notice of appeals also states that it is from the order denying plaintiff's motion for a new trial. No appeal lies from such an order. Reeves v. Reeves, 34 Cal.2d 355, 209 P.2d 937. The appeal from said order is therefore dismissed.

The purpose of the action is to recover damages for an alleged breach of a lease wherein appellant as lessor leased to respondents a certain building and premises located on Mason Street in San Francisco. The period of the lease was ten years and the total rental $270,000, payable in monthly instalments of $2,250 each.

Among other provisions in the lease, respondents agreed in paragraph 4 to execute and deliver to appellant and to record chattel mortgages covering all personal property in the building belonging to respondents and all subsequently acquired personal property placed therein, subject, however, to the paramount claims of the holders of any conditional sales contracts, and to provide appellant with copies of any such conditional sales contracts.

In paragraph 16 it is provided that: 'The filing of any petition in bankruptcy or insolvency by or against the Lessees shall be deemed to constitute a breach of this lease and thereupon, ipso facto and without entry or other action by Lessor, this lease shall become and be terminated; and notwithstanding any other provisions of this lease, Lessor shall forthwith upon such termination be entitled to recover damages for such breach in an amount equal to the amount of the rent reserved in this lease for the residue of the term hereof, less the then fair rental value of the premises for the residue of said term.'

Paragraph 19 of the lease contains general provisions governing remedies of the lessor for breach. It provides that in the event of failure by lessors to pay rent or to perform or to observe any of Lessees' obligations thereunder Lessor might at any time thereafter, without notice or demand, lawfully declare the term ended and re-enter the premises and that: 'Upon such entry the Lessees shall be liable to the Lessor as follows: (a) for the installments of rent and other sums falling due hereunder for the period or periods after entry during which the premises remain vacant, which sums shall be payable as they become due hereunder; * * * and (c) while said premises are subject to any lease or leases made by Lessor pursuant to this paragraph, for the amount by which the monthly installments payable under such new lease or leases is less than the monthly installments of rent payable hereunder which deficiency shall be payable monthly as the same is determined.'

In paragraph 5 of the lease it is provided that Lessees might assign the lease to a California corporation organized by them provided they were not then in default 'and upon the written assumption of this lease by such corporation and the compliance by said Lessees or by said corporation of the terms of paragraph 4 above relating to the security for this lease, [the chattel mortgages on the personal property] Lessees shall be personally discharged from all liability under this lease, except that Lessees shall severally remain liable to Lessor upon their covenants in said paragraph 4 to pay to the conditional vendors and to Lessor all balances due under all conditional sale contracts not later than July 31, 1948, * * *'

The lease was executed on April 30, 1947. On July 1, 1947, before there was any breach, it was assigned to and accepted by Hellenic Enterprises, Inc., a corporation. On December 13, 1947, Hellenic Enterprises, Inc., filed a petition under the Bankruptcy Act.

Appellant in his complaint claimed that respondents violated the terms of the lease in the following respects: (a) That they failed to execute and deliver to appellant the chattel mortgages referred to in paragraph 4 of the lease; (b) that they purchased personal property under conditional sales contracts and failed to furnish appellant with copies of these contracts; (c) that Hellenic Enterprises, Inc., filed a petition in bankruptcy.

During the trial it was admitted that the chattel mortgage had not been given; that copies of the conditional sales contracts were not furnished to the lessor; and it was stipulated that Hellenic Enterprises, Inc., had filed a petition for relief under the bankruptcy statutes which terminated the lease.

The first appeal herein was from the judgment following an order sustaining a demurrer to the complaint without leave to amend, apparently on the theory that after assignment of the lease to Hellenic Enterprises, Inc., the original lessees were no longer liable thereunder. It is reported in 94 Cal.App.2d 136, 210 P.2d 256. Therein the judgment of the trial court was reversed and it was held that according to the allegations in the complaint there had been a failure to execute the chattel mortgages and to furnish copies of the original sales contracts and that, as a matter of law, respondents were still liable for any breach of the lease.

In this appeal the parties seem to have been a bit uncertain as to just how the issues should be defined. Appellant asserts in his opening brief that the trial court was in error:

(1) In not following the law of the case as set forth in 94 Cal.App.2d 136, 210 P.2d 256;

(2) that the court improperly refused to allow a proffered amendment to the complaint which would have amended it to conform to the proof; and

(3) that the court erred in rejecting a proffered instruction. In a...

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4 cases
  • Wagner v. Osborn
    • United States
    • California Court of Appeals
    • February 19, 1964
    ...but is error, to instruct on any theory that is untenable as a matter of law, or is unsupported by the evidence. (Nelson v. Angel, 124 Cal.App.2d 861, 269 P.2d 626; Strandt v. Cannon, 29 Cal.App.2d 509, 85 P.2d 160; Kroplin v. Huston, 79 Cal.App.2d 332, 179 P.2d Since there was no evidence ......
  • Brautigam v. Brooks
    • United States
    • California Court of Appeals
    • May 28, 1964
    ...C.J.S. Pleading § 285, page 619. To the same effect, see Winberry v. Lopez, 178 Cal.App.2d 672, 679, 3 Cal.Rptr. 245; Nelson v. Angel, 124 Cal.App.2d 861, 866, 269 P.2d 626; Lavely v. Nonemaker, 212 Cal. 380, 385, 298 P. 976; Weinberg v. Dayton Storage Co., 50 Cal.App.2d 750, 759, 124 P.2d ......
  • Hillman v. Garcia-Ruby
    • United States
    • United States State Supreme Court (California)
    • May 27, 1955
    ...P.2d 795; Petersen v. Rieschel, 115 Cal.App.2d 758, 252 P.2d 986; Summers v. Randall, 123 Cal.App.2d 113, 266 P.2d 217; Nelson v. Angel, 124 Cal.App.2d 861, 269 P.2d 626. A jury is bound to follow the law as it is given to it in the instructions given by the court. The rule is set forth in ......
  • Sheppard v. City of Los Angeles
    • United States
    • California Court of Appeals
    • July 27, 1959
    ...theory that does not have such support. Daniels v. City & County of San Francisco, 40 Cal.2d 614, 623, 255 P.2d 785; Nelson v. Angel, 124 Cal.App.2d 861, 866, 269 P.2d 626; 48 Cal.Jur.2d, § 188, pp. 216-217. Applying these principles to the facts in the instant case, we are of the opinion t......

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