Cross

This is an appeal by the defendant M. T. Thoma from a judgment against her for the recovery of rents. Appellant leased from respondent, for a term of years, a certain furnished hotel. The lease provided for a monthly payment of a fixed rental and also contained a clause to the effect that the lessee should pay to the lessor as rental, but in addition to the fixed rent charge, one-third of the profits arising from the operation of the property. After she had been in possession of the hotel for a part of the term, appellant assigned the lease to the defendant Thiele. He retained possession until he was in arrears in the payment of the fixed rental for a period of five months, whereupon he surrendered the property to respondent, long before the expiration of the original term; without the knowledge of appellant. This action was commenced to recover the fixed rental due for the five months.

[1] The appellant’s first contention is that the allegation of the complaint that the rent had not been paid was denied by the answer and that there is no finding upon that issue. There is some doubt whether the denial in the answer meets the allegation of the complaint in the respect mentioned,…