Somers

The defendant appeals from a judgment against it by default, it having declined to answer after the overruling of its demurrer to the complaint. It is alleged in the complaint that on or about the twenty-second day of November, 1912, plaintiff's assignor, the W. J. Somers Company, entered into a written contract of lease with Force-Hewitt Company of certain premises in San Francisco for a term of three years, and that the latter occupied said premises under said lease up to the time of the assignment hereinafter referred to; that on or about the fourteenth day of July, 1915, the said Force-Hewitt Company by an instrument in writing assigned to one J.L. Smith for the benefit of its creditors all of its property, including the said lease, in trust, to sell and dispose of the same, to collect the proceeds therefrom, to carry on said business and to pay from the proceeds thereof all expenses connected with the carrying on of said business and the administration of said trust, together with such other debts as are made preferences by law, and then the claims of said Force-Hewitt Company in full, and then to reconvey and deliver the remainder to said Force-Hewitt Company; that the said…

One of the grounds urged upon the petition for rehearing is that we have failed to determine the question whether respondent was a creditor of the assignor and an obligee included in the bond. In the former opinion filed herein we determined that question in the affirmative. Appellant in its petition for rehearing did not ask for a reconsideration of the former decision as to this point, but expressly stated that it was content to be bound thereby. For this reason we did not reconsider the questions involved in the former decision upon this point, and that question is to be considered, for the purposes of this case, as decided in the affirmative. The application for rehearing is denied.