Gallagher

On January 18, 1924, plaintiff and Carroll Gallagher, his wife, leased from defendants a portion of a building in Berkeley, California, for a term commencing June 15, 1924, and ending June 14, 1929. They agreed to pay therefor as rental the sum. of $300 each month in advance. The lease also contained the following provisions:

Defendants subsequently transferred the property, the lease and the deposit to the McMann Investment Company, a corporation. Plaintiff thereafter demanded of defendants the repayment of the deposit, and this action was brought on June 25, 1927, to recover the same with interest. Previous to the commencement of the action Carroll Gallagher assigned her interest in the claim to plaintiff.

The complaint alleged, and the court found, that the deposit was security for the faithful performance of the lease by the lessees, and it appears that they were still in possession on June 5, 1928, the date of the trial. Judgment was entered for defendants and plaintiff has appealed therefrom.

He contends that in view of the above provisions of the lease, upon the transfer of the property and the lease by defendants the lessees became entitled to the return of the deposit…