Gordon

This action was brought to recover certain rents alleged to be due and unpaid under the terms of a written lease. The present appeal relates only to the judgment in favor of the defendant on the first cause of action set out in the complaint. The defense of the defendant was that there had been a change in the written contract of lease by an oral executed agreement, whereby the claimed rent was paid.

A former appeal from a judgment in favor of the defendant in this action was decided by the court of appeal for the first district in division one thereof. ( 15 Cal. App. 765 [ 197 Pac. 955 ].) That appeal was taken upon the judgment-roll alone. The principal facts constituting the cause of action are set forth in the decision cited. In its findings at the first trial the court found that defendant had entered into possession of the premises described in the lease set forth in the first cause of action, but further found that such terms were subsequently changed by an oral agreement between the parties, and that such agreement was carried out by the lessee and accepted by the lessor. This change in the lease as found by the trial court consisted in an agreement which in substance…