(after stating the facts). It is claimed by counsel for the defendants that the nine hundred dollars paid by Hulsey, the lessee, to Mrs. McClure, the lessor, was in the nature of a deposit by the tenant to secure the performance of stipulations contained in the lease and that upon their eviction by Mrs. McClure they were entitled to recover the balance of same, after deducting the rent due Mrs. McClure. They rely upon the case of Cunningham v. Stockton, 81 Kan. 780; 106 Pac. 1059, and other cases of like character. In that case the court said:
“The lease did not contain an express statement that the money advanced should constitute a deposit to insure performance by appellee, but the advancement of so large an amount, the payment of the same before the construction of the building was begun and about six months before possession could be obtained, and the provision that the amount advanced should be applied on the rental for the last year of the term clearly indicated that it was. a deposit to insure performance, by appellee.”
The monthly rental in that case was $350, and the amount paid in advance and stipulated to be applied on the rent for the last year of the term was $4,200.
In the instant case the facts are essentially different. The defendants refused to pay the rent after it became due and contended that the nine hundred dollars was to sechre the payment of the monthly instalments of rent after they matured. Their position leads to the conclusion that they, as assignees of the lessee, would be entitled to remain in possession without payment until their default amounted to a sum equal to nine hundred dollars, and that Mrs. McClure could not evict them for such default since she could apply the deposit in satisfaction of the delinquent rent. In discussing a similar contention, in the case of Barrett v. Monro, 40 L. R. A. (N. S.) 763, the Supreme Court of Washington said:
“This construction would read into the lease a stipulation which it does not contain. Had appellants thus applied the deposit, and had the default continued until it was .exhausted, they would have been without security for future :rent, or for damages which might result from' a- further breach, and thereafter would have been subjected to a constant liability of losing their lease for the remainder of the term, without certainty of obtaining another tenant at an equally remunerative figure. They would also have been subjected .to any damages they might sustain in recovering possession, and by reason of depreciation in rental value for the remainder of the term. It was respondent’s duty to make the stipulated monthly payments.”
It'is a fundamental principle of law that courts do not make contracts for parties but only enforce their rights under contracts made by them. The contract under consideration here does not provide that the nine hundred dollars should be returned to the lessee after the termination of the lease, nor can it be gathered from the terms of the lea-se itself, or from them when considered in the light of the attendant circumstances that it was the intention of the parties to secure performance of the stipulations contained in the lease by a deposit of the nine hundred dollars. By the direct and express terms of the lease itself, the payment of the nine hundred dollars was simply a payment in advance of the rent. At the time ’ the defendants refused to pay the rent the lease had over four years to run and it will be noted that" the payment of the nine hundred dollars was made by the original lessee. He still stands liable to his lessor for the rent after it accrued subsequently to his assignment of his lease. This is so because Mrs. McClure did not accept a surrender from him and agree to release him from liability. Underhill on Landlord & Tenant, Yol. 2, § 650; Tiffany on Landlord & Tenant, Vol. 1, page 1130. By the express terms of the contract the nine hundred dollars paid by the original lessee to the lessor was, as we have already seen, simply a payment in advance of rent and the contract, not containing any provision that it should be paid back, and it is not recoverable by the defendants. See Bloch v. Tucker, 107 Ark. 349; Werner v. Padula, 49 App. Div. N. Y. 135; Forgoston v. Brofman, 84 N. Y. Supp. 237.
The facts in this case were undisputed and presented for the decision of the trial court a question of law only. The trial court certified that a short statement of facts might properly have been prepared and this the defendants offered to do, but they were, required by plaintiff .to put into the record the detailed testimony of the witnesses at a cost of $41.70.
Therefore, under rule No. 15 of this court, the cost so incurred, viz.,. $41.70, will be taxed against the plaintiff. It follows that the judgment will be affirmed.