28 Cal. 59 | Cal. | 1865
By the Court,
The parties entered into an agreement on the 22d of October, 1860, by which the plaintiff leased to the defendants certain premises at a certain rent reserved, for the term of one year from the date thereof, with the privilege to the defendants of a renewal of the lease for one year longer on the same conditions, with the right to remove from the premises at the expiration of the term of the leasehold all the buildings and improvements before then erected thereon, unless the plaintiff should pay for the same—and it was further provided by the agreement that the plaintiff should not enter and take possession of the premises at the expiration of the second year, except on payment to the defendants of the value of all the improvements they might put or cause to be put on the premises after the date of the lease. It was stipulated that the
Sometime in the year 1863, after the 20th of May, but at what particular time the record does not show, the plaintiff commenced an action in a Justice’s Court, under the Act concerning forcible entries and unlawful detainers, for the purpose of obtaining possession of the demised premises. The complaint contains allegations of the performance of the conditions entitling him to the possession of the premises and of a refusal of the defendants to surrender the possession of the same, according to the agreement on their part so to do. The defendants controverted the material averments of the complaint. The cause was tried before the Justice and a jury, and judgment was rendered for the plaintiff The defendants appealed to the County Court, and judgment was again rendered for the plaintiff The defendants then moved for a new trial, which was denied, and from the judgment and order an appeal was taken to this Court.
From the record it appears that on the 10th of April, 1863, the plaintiff gave to the defendants a notice in writing informing them that the lease had expired, according to its terms, and demanding that they surrender to him possession of the premises within thirty days thereafter. That he declined purchasing or paying for any improvements put pn the premises prior to the date of the lease;, and requiring them to remove the same within thirty days. That he had selected and appointed a certain person as referee to ascertain and value the improve
It appeared in evidence, also, that defendant Jones stated to plaintiff in February or March, 1863, upon the plaintiff’s demanding of him the rent then due, that the lease terminated on the 22d of October, 1862that he did not hold under the lease, and would not pay any more rent. On the. 6th of April, 1863, the plaintiff addressed a letter to the defendants requesting them to pay to Joseph Hull the amount of rent due up to the 22d of that month. This letter was delivered by Hull to the defendant Sheriff, who took it away with him without saying whether he would pay it or not. On the 22d of April the defendants tendered to the plaintiff the amount then due, which the plaintiff refused to receive, and on the 18th or 19th of May following the defendants again tendered to plaintiff the rent due and also a month’s rent in advance, which the ■ plaintiff refused to accept. The sum of money first tendered was paid into Court for the plaintiff when the defendants’ answer was filed, and there remained at the time of the trial, subject to the order of the plaintiff.
The defendants failing and refusing to appoint a referee to ascertain and appraise the value of the improvements made on the premises after the date of the lease, two persons selected by the plaintiff for the purpose appraised and reported the value of such improvements at a certain sum, which one of the appraisers testified was their full value. The plaintiff testified he was willing to pay the amount fixed by these appraisers, and had. tendered the same to the defendants, though at the time of the tender he thought, and still was of opinion, it was more than the improvements were worth.
The second section of the Act referred to provides that any Justice of the Peace shall have authority to inquire as therein-
In this case the leasehold became determined by the lessor’s thirty days notice to quit, and his offer and tender of performance on his part of the terms and conditions contained in the agreement, on his part to be performed and fulfilled, and his tender of the full value of the improvements for which he had contracted to pay the defendants. The agreement between the parties prescribes the mode by which the value of the improvements for which the plaintiff contracted to pay should be ascertained. But it is argued, on behalf of the defendants, that it is not provided within what time this should be done, nor that the failure of either of the parties to nominate a referee or appraiser for ascertaining such value should give the other the right to go on and select both appraisers. It may be admitted that the contract between the parties does not so provide in terms, but it does not, therefore, follow that either of the parties could defeat the object
Judgment affirmed.