Appeal from Superior Court, Pima County; John D. Lyons, Jr., Judge.
A. E. Butterfield, in pro. per., and Gordon G. Aldrich, of Tucson, for appellant.
Fred W. Fickett, William S. Dunipace, and Robert S. Tullar, all of Tucson, for appellee.
Stanford, Chief Justice. La Prade and Udall, JJ., concur.
Stanford, Chief Justice.
[66 Ariz. 30] For convenience herein we will term the appellant and appellee as plaintiff and defendant, respectively, as they were styled in the trial court.
Plaintiff sued defendant for rent due, for restitution of the premises and for damages. Plaintiff had two written leases from his landlord for the premises located at 128 North Church Street, Tucson, Arizona, one lease being from January 9, 1945 to January 9, 1946, the other lease being from January 9, 1946 to January 9, 1950. Plaintiff took possession of the premises January 9, 1945.
On February 20, 1945, plaintiff subleased a portion of the premises described to defendant Duquesne Mining Company, a copartnership composed of J. H. Byrd, A. R. Byrd and C. O. Byrd, the premises subleased being three rooms with certain other privileges. The lease to defendant covered a period from March 1, 1945 to January 1, 1950, at the monthly rental of $ 75, payable on the first day of each and every month. A condition of the sublease was that the defendant [66 Ariz. 31] lessees of same from this plaintiff, were subject to all of the terms, covenants and conditions contained in the two leases from the owners of the property to the plaintiff herein.
Also, the defendant agreed by such lease that at the expiration or termination of the term of the lease between this plaintiff and these defendants, or at the expiration or termination of the original lease between this plaintiff and his two lessors, peaceable possession of said premises would be given to the plaintiff herein.
Rent was promptly paid on the first of the month, as called for in the lease, for the months of March and April, but, as we find from the records, the July rent was not paid until the 7th day of the month;
the September rent was not paid until the 8th day of the month; and the October rent was not paid until the 24th day of the month. There were no objections made nor exceptions taken to the lateness of the payment of this rental which was partly due to the fact that there had to be an adjustment of the utility bills between the parties, which bills didn't arrive promptly on the first of the month. On November 8, 1945, plaintiff gave notice to the defendants to vacate the premises, the notice reading to vacate "on or before the 20th day of November, 1945, for the reason that the rental due for said premises on November 1, 1945, has not been paid, and more than five (5) days has elapsed since such rental was due and payable, and the undersigned (being the plaintiff) has elected, by reason thereof, to terminate your tenancy."
Prior to the giving of the notice to vacate, the plaintiff had not notified the defendants that thereafter he was going to insist on the rent being paid ...