Reidy

This is a suit concerning the same transaction as Miller v. Reidy, No. 5580 (ante, p. 757 [ 260 Pac. 358 ]). Only a few facts need be here mentioned in addition to those stated in the opinion in that case. In this action Reidy filed a complaint in which he sought to recover $2,000 with interest deposited with the lessors by the original lessee, Rutledge, as security for the faithful performance of the lease. After trial by the court without a jury judgment as prayed was entered for the plaintiff, and the defendants appeal therefrom. A number of grounds are advanced as reasons for reversal.

The assignment of his interest in the lease by Reidy to the Los Angeles Haynes Company did not constitute a breach of the covenant against assignment. (Miller v. Reidy, supra.) Appellants are not in a position to question the assignment to Reidy of the deposit money in dispute, since the amended complaint alleges such assignment to have been made, and the answer thereto makes no denial of that allegation; hence the trial court properly accepted it as true.

Appellants devote much of their briefs to argument that since the complaint alleges performance by the lessee, recovery must be had if at…