SCHUESSLER v. LUNDSTROM. In re OAK HILL MARBLE & STONE WORKS, 246 F. 439

PER CURIAM. This is an appeal from a decree in favor of the appellant for the sum of $75 found to be due to him for rent of premises leased by him to the bankrupt. The decree adjudged that the appellant had a lien upon assets in the hands of the trustee, and directed the latter to pay the amount awarded. The decree is complained of on the ground that the amount awarded is less than that shown to be unpaid and due under the written lease between the appellant and the bankrupt.

During a considerable part of the term covered by the lease the bankrupt paid $50 a month rent, instead of $85, the monthly rent called for by the lease. We think the evidence adduced well supported the finding made by the referee, which was approved by the District Court, that each of the $50 payments was accepted as full satisfaction of the rent for the month for which it was paid. But the evidence satisfies us that a mistake was made in computing the amount due to the appellant.

Our conclusion from the evidence is that 2% months’ rent, at the rate stipulated for in the lease, was due and unpaid at the time the petition in bankruptcy was filed. The decree appealed from is here amended, by making the amount awarded $212.50, instead of $75. As so amended, that decree is affirmed, with costs to the appellant.