95 P. 677 | Cal. Ct. App. | 1908
This is an appeal from a judgment on nonsuit granted upon motion of defendant at the close of the evidence for plaintiff.
The action is for forcible entry and detainer, and the complaint is so drawn as to state a cause of action under both sections
The only ruling presented for review, aside from the order granting the nonsuit, is the action of the court sustaining an objection of defendant to the offer of a receipt dated April 20, 1906, and shown to have been signed and delivered that day by "Baldwin Howell, agents." The instrument purported to be a receipt for $25 as a deposit on account of rent of the premises sued for at $60 per month, for the term of one year commencing on the first day of May, 1906. The objection was upon the ground, among others, that it was void as against defendant, no written authority to the agents being shown, and the lease being for a term to commence in the future. At the time of the offer no written authority had been shown. Subsequently plaintiff proved that no written authority had ever been given by the defendant to Baldwin Howell. Treated as a lease the instrument was void as against defendant. (Wickson v. Monarch Cycle Mfg. Co.,
Furthermore, the entry complained of is alleged and claimed to have occurred prior to April 24th, while the receipt did not purport to confer any right upon plaintiff until May 1st. It therefore did not tend to show either a right of possession by plaintiff or any actual possession by plaintiff, at the time of the entry complained of. The court did not err in sustaining the objection.
Plaintiff in his testimony showed that his only claim of right to the possession of the premises, and his only possession — if any he ever had — of the premises was as a tenant of defendant.
The evidence in the case shows that on April 20, 1906, plaintiff applied to Baldwin Howell to rent the premises in suit, being two stores numbered 1109 and 1111 Fillmore street. It was shown that Baldwin Howell had no written authority from the owner, the defendant, and was only orally authorized to lease the stores subject to the approval of defendant. Baldwin Howell, as agents, did, however, on the *707 twentieth day of April, 1906, through Mr. Baldwin, rent to plaintiff the two stores at a rental of $60 a month for the term of one year, commencing May 1, 1906, and accepted as a deposit on the rental $25. Baldwin then went with plaintiff to the stores, told plaintiff to get the keys from a billiard parlor, which he did. They went into the stores, and plaintiff tore down the "To Let" signs of Baldwin Howell. Plaintiff picked up a piece of plaster that was lying on the floor, and wrote on it "This store will be opened as a first-class clothing and furnishing goods store," and placed it in the window where it could be seen by the public. He then said to Mr. Baldwin that the plaster would need fixing, and Baldwin replied that that would be done. Plaintiff then said that he would like to take out the partition between the two stores at his own expense, and Baldwin said the landlord will not object to that. They then left the premises, plaintiff locked the doors, and retained the keys, although there was a tag attached to each with the direction "Lock the doors and return this key to billiard parlor." This was in the morning, and plaintiff again in the afternoon visited and entered each store. The keys remained in his possession, and, we think it may be fairly inferred from the evidence, with the knowledge and consent of Mr. Baldwin.
The foregoing is all the evidence tending to show any possession or occupation of the premises by plaintiff.
Plaintiff went to the country, where he had been living, and on his return several days later found the stores in the possession of others. He made a demand on defendant for the, premises, and tendered to him the rent, but defendant refused to accept the rent and refused to give him possession of the premises.
There is no evidence of how defendant entered the stores or got the doors opened except what may be inferred from the fact that he gave to the person, to whom he rented the premises on April 24th, keys to the doors, and keys to padlocks which had been placed thereon.
The trial court granted the nonsuit upon the ground that the plaintiff was not in the possession of the premises when the entry complained of occurred.
We think the court was correct in thus holding. The lease was by its terms to commence in the future (May 1, 1906), *708
and having been made by an agent without written authority was void. (Wickson v. Monarch Cycle Co.,
Furthermore, even if it be conceded that plaintiff had a possession of the premises sufficient to warrant an action for forcible entry and detainer, the evidence wholly fails to show that the entry by the defendant was either forcible or unlawful. As before stated, the evidence shows that the lease under which plaintiff claims was void. The evidence also shows that the possession, if he had any, was without authority from the owner (defendant). Defendant therefore had a right of entry, and the possession of plaintiff, if any he had, was unlawful as against defendant. The owner, with a right of entry, of lands unlawfully in the possession of another, may, during the absence of such occupant, peaceably and without force or violence, take possession thereof, and his subsequent refusal to deliver possession to such occupant does not make him guilty of either a forcible entry or forcible detainer. (Potter v. Mercer,
In Powell v. Lane,
To the same effect is Potter v. Mercer,
The judgment is affirmed.
Cooper, P. J., and Kerrigan, J., concurred. *710