Harrelson

This action was brought to recover from defendants four hundred and fifty dollars, alleged to be due under the terms of a written lease as rental for certain real estate. Defendants answered admitting default in the payment of rent as alleged, but in defense of the action they set up a counterclaim in the sum of three hundred and seventy-four dollars, paying plaintiff the difference between the four hundred and fifty dollars sued for and the amount of the alleged counterclaim.

The question involved at the trial was the right of defendants to recover upon the counterclaim. Judgment went for the defendants, from which, and an order denying his motion for a new trial, plaintiff appeals.

The counterclaim grows out of the following facts: On January 22, 1902, plaintiff executed to defendants Stimson and Fleming a lease of a parcel of land in the city of Los Angeles, for a term of ten years. The lessees erected buildings and made improvements upon the property, and thereafter, without assigning the lease, sublet the same to defendant Oro Grande Lime and Stone Company, of the capital stock of which Stimson and Fleming were the sole owners, to which they sold the buildings. The lease…