217 P. 821 | Cal. Ct. App. | 1923
This is an action of unlawful detainer brought to recover possession of certain lands on the alleged ground that the defendants had broken their covenant not to assign the lease under which they held. Defendants Luiz C. Amaro, Luiz Deniz, and George Silva failed to answer and default judgment was entered against them. The other defendants were given judgment and plaintiff has appealed.
The complaint alleges that "defendants" Joe D. Cotta, Luiz Deniz, Frank Deniz and Luiz C. Amaro, without the consent of first party in writing . . . or without his consent in any other manner given, and without his knowledge, did assign all their right, title and interest in and to said lease and the premises therein described to George S. Silva and Frank M. Tosta, defendants above named, on or about the third day of January, 1921; that plaintiff had no knowledge of said assignment until a few days prior to the time of filing this complaint; that pursuant to said assignment the said George S. Silva and Frank M. Tosta went into the actual possession of said premises and ever since said third day of January, 1921, have been and now are in possession of said premises." The complaint contains other allegations appropriate to an action of unlawful detainer and a copy of the lease is attached thereto. By the terms of the instrument, which is dated June 19, 1918, plaintiff leased the lands to defendants Joe D. Cotta, Frank Deniz, Luiz Deniz, and Luiz C. Amaro for a term of five years, with the option of an extension of five years additional. [1] Among other terms the lease provided: *693 "If default shall be made in any of the covenants herein contained, that it shall be lawful for the said party of the first part to re-enter the said premises, and remove all persons therefrom. And the said parties of the second part do hereby covenant, promise and agree . . . not to let or underlet the whole or any part of the said premises nor assign this lease, voluntarily or involuntarily, without the written consent of the said party of the first part." The answers of the defendants deny that "Joe D. Cotta, Luiz Deniz, Frank Deniz and Luiz C. Amaro did assign all or any" of their right, title, or interest in or to the lease or the premises therein described. The court found in accordance with such denials and further, that " Joe D. Cotta, Luiz Deniz, Frank Deniz, and Luiz C. Amaro did not at any time jointly assign or transfer their interest in and to said lease and the premises therein described to George S. Silva and Frank M. Tosta, or either of them." The finding that the lessees did not "jointly assign" the lease suggests the only controversy on this appeal. The trial court said, in effect, that if the lessees all made individual assignments of their respective interests under the lease, without any understanding among them that they should do so, such acts would not work a forfeiture of the lease "even though, in spirit, it is absolutely broken, that won't do, it has got to be in the letter absolutely."
The plaintiff endeavored to prove the facts upon which he relied, but the court required him first to state what he expected to prove and, based upon such statement, objections were sustained to practically all of the evidence offered. In consequence of such procedure, the record on appeal does not enable this court to dispose of the case on its merits, but it must be assumed that plaintiff would have been able to prove all the facts embraced in his statement. In obedience to the requirement of the court, counsel for plaintiff proposed to prove that, about three years prior to the trial, Luiz Amaro assigned his interest in the lease to Joe D. Cotta and Luiz Deniz assigned his interest therein to Frank Deniz, the assignees going into possession; that on the 3d of January, 1921, Joe D. Cotta assigned his interest to George S. Silva, and on the third day of February, 1921, Frank Deniz assigned his interest to Frank M. Tosta, and that Tosta and Silva went into possession under the assignments; *694 "that the said Cotta and said Frank Deniz, at the time of the transfer of their interest in said lease to said Silva and said Tosta, arranged and conspired with said Silva and said Tosta to arrange the payment of the rent, the management of the dairy, in such a way that the said DeAngeles, the plaintiff herein, would not know that any assignment had been made by said Cotta and said Frank Deniz to said Silva and said Tosta; that the dairy on said ranch was conducted by said Silva and said Tosta as partners."
The trial court based its interpretation of the law upon the case of Randol v. Scott,
Owners of property are justly solicitous as to the character of its occupants and restrictions upon the right of a lessee to substitute another tenant without the lessor's consent are reasonable covenants which ought to be rationally construed. "A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created." (Civ. Code, sec.
Two of the lessees acquired the interests of the others and then, by separate assignments, conveyed the entire leasehold to persons who were strangers to the original lease. After Joe D. Cotta and Frank Deniz had acquired the entire interest in the lease, they continued to be bound by the covenant not to assign as fully as the four lessees were in the beginning. The covenant not to assign was joint and several. "Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several." (Civ. Code, sec.
The judgment is reversed.
Jones, J., pro tem., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 27, 1923. *697