Knight

This is the second appeal in this case. The action was brought to recover money claimed to be due to the plaintiffs’ testatrix upon a lease executed by her to Benjamin L. Marks on October 22, 1908. Plaintiffs sought to obtain" liquidated damages for the nonpayment of rent, and to forfeit a deposit held by the German Savings and Loan Society as security. The cause was first tried by a jury, and upon the verdict judgment was rendered in favor of plaintiffs and against Marks for the sum of twenty-nine hundred dollars, and against Bianchi and the German Savings and Loan Society for the sum of $11,222.87. From this judgment the defendant Joseph C. Bianchi appealed. The supreme court reversed the judgment upon the ground that the breach of the lease complained of being merely nonpayment of rent, plaintiffs were not entitled to liquidated damages under section 1670 of the Civil Code. (Knight v. Marks, 183 Cal. 354 [ 191 Pac. 531 ].) Upon the filing of the remittitur in the court below, plaintiffs amended their complaint and upon the second trial made no claim to liquidated damages, but claimed that the deposit was a general security for the lease, and that they had the right to apply it…