Appeal from the County Court of the City and County of San Francisco.

On the first day of July, 1867, the plaintiff leased to the defendant Kelly, a lot in San Francisco, for the term of five years, at a monthly rent of thirty-five dollars for the first two years, and forty-five dollars for the remaining three years. Kelly afterwards sublet to defendant Frist. The rent for the months of January, February, and March, 1870, amounting to one hundred and thirty-five dollars, was not paid; and on the 8th day of March, 1870, the plaintiff served a written demand on the defendants to pay the -rent, and to deliver up possession of the premises. Defendants having failed to pay the rent, this action was commenced on the 12th day of March, 1870.

The defendants, in their answer, admitted that the rent was due, and the demand made; but averred that four or five days before the summons was served on them they tendered to the plaintiff one hundred and thirty-five dollars, and that he refused to receive the same; and that, on the 1st day of April, 1870, they tendered to the plaintiff the rent and interest, and all costs which he also refused, and that they now brought into Court the same. The answer further alleged that the lot was unimproved when the lease was made; but they had since erected buildings thereon, at an expense of two thousand and five hundred dollars; and that, by the terms of the lease, the improvements could not be removed during the term of the lease.

On the trial the defendants offered to pay all rent then due, and interest, and all cost and expenses; but the plaintiff refused to receive it. The plaintiff then moved for judgment on the pleadings. The defendants offered to prove the matters set up in the answer; but the Court refused to receive the evidence, and sustained" the plaintiff’s motion!

The defendants appealed.