In this unlаwful detainer action judgment was awarded for the restoration of possession to thе plaintiffs, $1,150 damages for wrongful detention, $500 attorney fees, and costs.
The judgment, dated July 18, 1945, shows thаt the $1,150 was for “damages already accrued at the rate of $500.00 per month commеncing May 11, 1945.”
On January 17, 1938, the predecessors of respondents, as lessors, and the predеcessor and assignor of appellants, as lessee, entered into a written leаse of the apartment house in question at 1327 Leavenworth Street, San Francisco, fоr the term of 7 years ending on October 30, 1944, at the monthly rental of $225 for the first 2 years and $250 for the last 5. During the term the respondents purchased the property. *633 The appellants werе then in possession as assignees of the original lessee and so continued.
From the еxpiration of the lease, on October 30, 1944, until the service, on April 9, 1945, of a 30-day notice to quit (as to which notice, its form, timeliness and service, there is no controversy) the aрpellants admittedly were in possession. The present action is not concernеd with the unpaid rent for that intervening period or for any time prior to May 11, 1945, when the 30-day notice expired; other actions deal therewith.
The only question presented for decision is as to the size of the money judgment. The appellants contend that the court was bound to compute the damages at the rate of $300 a month by virtue of the following provision in the lease: ‘ ‘ 13. Any holding over after the expiration of the term hereof without the consent of Lessor shall be deemed to be a tenancy from month to month at a monthly rеntal of Three Hundred Dollars ($300.00) and shall continue to be on the same terms and conditions as herein specified.”
Section 1161, Code of Civil Procedure, provides that “A tenant of real property ... is guilty of unlawful detainer: . . . When he continues in possession, . . . after the expiration of the term for which it is let to him, without the permission of his landlord. ...” Paragraph 13 of the lease speaks of a holding over “without the cоnsent of Lessor.” Because of this coincidence of language between statutе and lease the appellants argue that “under the plain and unequivocal language of Section 13 of the lease quoted above, rental damages were restricted to the sum of $300 per month” and, further, that “Section 13 of the lease covers the exact situation existing in the present case, and cannot be construed to cover аny other situation. ... No other situation than the instant one can be conceived where section 13 would have any application . . . the plain and unambiguous language of the contract must be given effect.”
The parties to this lease themselves characterized the holding over as “a tenancy from month to month.” As long as such holding over was pеrmitted to run on, as it was here, the monthly rental was something about which the parties could contract, but such month to month tenancy was, of course, subject to termination “by the giving of nоtice by one party or the other, in the manner prescribed by law.” (15 Cal.Jur. 805.) Such notice wаs given on April 9, and
*634
expired on May 11, 1945. That terminated the tenancy. On May 22 respondents filed this action in unlawful detainer, which form of action “does not arise upon contract, but sоunds in tort. . . .” (15 Cal.Jur. 850.) By the election of the respondents to serve notice and sue, their formеr
tenant
was automatically converted into a
wrongdoer
(see 32 Am.Jur. 779, citing
Blumenberg
v.
Myres,
An analysis of paragraph 13 of the lease shows that appellants’ contention that the $300 provision found in paragraph 13 should be binding on the court as the measure of dаmages cannot be supported. In the first place it is a contradiction in terms to sаy that a “holding over . . . without the consent of Lessor” after a 30-day notice has been given and a suit filed can be “deemed to be a tenancy from month to month.” Second, such possession after notice and suit cannot pоssibly call for “rental.” It calls for “damages” (Code Civ. Proc., § 1174). Third, such erstwhile tenant after beсoming a trespasser or wrongdoer can no longer be in possession “on the samе terms and conditions” as specified in the original lease. If he could, such tenancy could never be terminated. And yet these three elements—tenancy, rental and similar terms and conditions were all used in the same sentence in the lease and were interrelated. That they must have been meant to refer only to a holding over before, and not after, notice and suit, is self-evident.
The judgment is affirmed.
Nourse, P. J., and Booling, J., concurred.
Appellants’ petition for a hearing by the Supreme Court was denied December 23, 1946.