
    Rawson et al. v. Wood, Recr., et al.
    (Decided November 23, 1931.)
    
      Mr. William R. Collins, for plaintiffs in error.
    
    
      Mr. Lem 8. Miller and Mr. Oliver G. Bailey, for defendants in error.
   Boss, P. J.

This case is presented to this court on error from the court of common pleas of Hamilton county, Ohio, wherein judgment was rendered adversely to the claim of an intervening petitioner that certain charges for rent of premises occupied by a receiver be decreed to be a preferred claim.

The intervening petition, filed January 19, 1931, alleges that certain heirs are the lessors of a building in the city of Cincinnati, which had been leased to the Bobert Putman Candy Company for a term of years at a yearly rental of $7,000, payable in installments of $583.33 per month. The lease contained the usual provisions that, in case the rent was not paid for thirty days after it was due, the lessors had the right to resume possession of the premises, and that, if a receiver was appointed, lessoi’s had the right to terminate the lease.

The intervening petition further recites that on November 18, 1930, Frank E. Wood was appointed and qualified as receiver of the Candy Company, and on that day entered into possession of the premises and has continued to occupy such premises; that the rental installments had been paid up to November 1, 1930; that the attorney for the lessors notified the receiver that the rent was unpaid for November, 1930; that as “a condition for being allowed to remain in said premises said receiver was expected to assume and pay the delinquent November, 1930, rent and all rent thereafter during the period in which said premises were occupied by said receiver,” and that it was “made a condition that if the receiver elected to occupy said premises under said lease, and was given the continued use of said premises under said lease, such arrearage of rent for the first eighteen days of November, 1930, must be paid by said receiver;” that claims for rent covering the latter portion of November, 1930, and the month of December, 1930, were filed with the receiver, and that he has tendered a check for $233.33 for the month of November, and $583.33 for the month of December, 1930.

The lessors pray that the receiver be directed to pay the full rent for November and December, 1930, and for such remaining months as he shall occupy the premises:

The record shows that the receiver took possession of the premises and was notified substantially as is alleged in the petition. It further discloses that at no time did he agree to pay the full installment for November, or in fact agree to pay any specific sum. He did tender a proportionate part of $583.33 for the time actually occupied in November and the full rent for December. Therefore only the rent unpaid by the candy company for the first eighteen days of November is in dispute. The installments were not monthly rent, but merely convenient portions of the entire yearly rental. The lessors had the right to re-enter under the lease, after allowing a reasonable period for the receiver to remove the machinery, fixtures, and supplies in the building. They could contract with the receiver, however, upon what terms he should continue to occupy the premises. It appears that they attempted to do so. The record, however, fails to show that any agreement was entered into. As the claim is made in the petition and brought out in the record, an attempt upon the part of the lessors is apparent to require the receiver to pay the arrearage for the first eighteen days in November as a preferred claim. This cannot be done, for it would prefer a claim which is only a general charge against the assets in the receiver’s hands.

The lessors, on the other hand, are entitled to a reasonable compensation for the occupation of the premises by the receiver. The receiver has tendered an amount which seems to be agreed upon as such reasonable compensation, for it is an amount fixed by the lessors.

For the period previous to the occupation by the receiver, the lessors have their general claim against the assets. The receiver as such cannot be required to pay the full amount for this period.

The judgment of the court of common pleas is affirmed.

Judgment affirmed.

Hamilton and Cushing, JJ., concur.  