Cheney v. J. R. Newberry & Co.

67 Cal. 125 | Cal. | 1885

Ross, J.

The demurrer to the complaint was properly sustained. The complaint alleges that on the 1st of June, 1883, under a written contract for a lease of a certain lot of land for the term of three years, at a rental of $66.66 per month, payable in advance, the defendants entered into possession of the premises. That on the 27th of September, 1883, being still in possession, defendants notified plaintiff “that they rescinded and cancelled the contract for a lease aforesaid and refused to be bound by it.” That defendants continued to occupy the premises, “ and plaintiff elected to receive from them for the year ending June 1, 1884, the rent therefor at the rate of $66.66 per month.” Unless, in this condition of affairs, it can be said that defendants were not holding the premises under the contract under which they originally entered, it is quite clear that the action, which is unlawful detainer, cannot be maintained upon the averments contained in the complaint. The entry under the written contract for a lease for a stated term and at a stated rent, and the payment and receipt of the rent, constituted a valid lease between the parties for the term and at the rental specified. (1 Wash. Real Prop. pp. 397, 398.) Neither party could subsequently cancel the contract witiiout the consent of the other, and that the plaintiff did not consent to the proposed cancellation is manifest from his subsequent acceptance of the rent in accordance with the terms of the contract. Payment and receipt of the rent was only consistent with a recognition by lessor as well as lessee that the lease was in force.

Judgment affirmed.

McKee, J., and McKinstry, J., concurred.