Jones

This is an action for unlawful detainer, brought under subdivision 3 of section 1161 of the Code of Civil Procedure. Judgment passed for plaintiff, and defendant appeals.

The complaint, in the form usual in such actions, alleges a lease of the premises by plaintiff to defendant, under a written lease, for the term of three years and six months from and after October 1, 1916, at a monthly rental of fifty dollars. In their lease contract the parties agreed that the lessee should execute a bond in the penal sum of one thousand dollars, with sureties satisfactory to the lessor, to guarantee the performance by the lessee of all his covenants and agreements. Defendant neglected to give such bond, and, on November 11, 1917, plaintiff served a written notice demanding that defendant furnish the bond or redeliver possession. Defendant failed to comply with the demand and plaintiff, on November 26, 1917, brought the action.

[1] At the trial plaintiff testified that in January, 1918, which was after he had commenced this action, he received from defendant rent up to the end of that month. According to this testimony he must have received, in January, 1918, rent for the months of October,…