178 P. 962 | Cal. | 1919
This action was brought to recover the possession of certain premises, together with damages. The complaint was in two counts. The first set up, in ordinary form, a cause of action in ejectment. The second alleged that the premises, consisting of a storeroom, had been held by the defendant Pinque under a written lease from one Keosheyan, and that the plaintiff, who had acquired the interest of Keosheyan, had elected, under the terms of the lease, to terminate it, and forfeit the rights of the defendant.
Judgment went in favor of the plaintiff for the recovery of the premises, for three hundred dollars, the value of the use and occupation, and for damages in the further sum of $509. The defendant, Pinque, appeals.
The lease from Keosheyan to Pinque was dated February 1, 1915, and ran for a term of nine years, at a monthly rental of one hundred dollars. It contained the following provisions material to this appeal: *761
"That said storeroom is to be used by lessee for the wholesale, retail, and commission fruit and vegetable business in all its branches. . . .
"It is further agreed that in the event lessee desires to make changes or improvement for the convenience of any business she desires to conduct, that she has the right so to do at her own expense, except lessee agrees not to change or conduct any business, like in kind to business in lessor's property at time of change, or conflicts with any lease in force at date hereof, between lessor and other persons, or open up shoe or clothing store within 3 months from March 1st, 1915.
"It is further understood and agreed in the event lessee shall make default in the payment of rent or refuse to comply with the terms, covenants and conditions of this lease on her part to be kept and performed, then said lessor reserves the right to terminate this lease and oust and eject lessee therefrom and that all moneys theretofore paid shall be retained by lessor as damages and rental on said premises."
The second count sets up a forfeiture of the lease on the ground of nonpayment of rent. It also alleges that plaintiff has been damaged in the sum of two thousand dollars by the defendant's failure to keep the premises in good repair, by her occupation of them as an automobile garage, and by her removal of a portion of the foundation of the building, thereby causing the floor to settle, and injuring and damaging the premises. The only ground of forfeiture asserted in the complaint is the nonpayment of rent. The other acts charged against the tenant are set up merely as a basis for the recovery of damages. They could not, in any event, justify a forfeiture. There is neither allegation, proof, nor finding that the tenant was under any obligation to repair. The defendant had the right, as we shall show hereafter, to use the premises as a garage. The commission of waste is not a ground of forfeiture, the landlord's remedy being an action for damages. (Chipman v. Emeric,
The findings follow the allegations of the complaint, except that they assess the damage for failure to repair, for use as a garage, and for injury to the building, at $509.
It was the settled rule at common law that a demand for payment of the exact sum due was a necessary prerequisite *762
to a forfeiture of a lease for nonpayment of rent. (24 Cyc. 1355.) The same rule was laid down in this state at an early date (Gage v. Bates,
The plaintiff therefore failed to establish a ground for the forfeiture of the lease and recovery of the premises for nonpayment of rent. The judgment for damages for withholding the premises must fall, of course, with the judgment for restitution.
We find ourselves unable, likewise, to sustain the part of the judgment awarding damages in the sum of $509. By the lease the premises were let to be used for the fruit and vegetable business. If the instrument had stopped with this provision, it might well be claimed that any other use by the lessee would render her liable in damages, or authorize the lessor to rescind the lease. (Civ. Code, sec.
If the defendant was liable for waste in removing a portion of the foundation of the building, there is no separate finding of damage resulting from this act. The court finds that the plaintiff has been damaged in the sum of $509 by the defendant's occupation of the premises as a garage and her removal of a portion of the foundation. There is no way in which we can determine what portion of this damage the court attributed to one or the other of the supposed wrongful acts. Since, as we have seen, the defendant did not violate the terms of the lease by using the premises as *764 a garage, the award of damages based in part on that ground cannot stand.
A number of other points are raised by the appellant, but the views we have expressed render any extended discussion of them unnecessary. The question of the sufficiency of the complaint may be obviated by an application to the court below for leave to amend. Any error that may have been committed in admitting in evidence the assignment of the lease from Keosheyan to the plaintiff without laying the proper foundation is not likely to recur upon a second trial.
The judgment is reversed.
Shaw, J., Wilbur, J., Melvin, J., Lawlor, J., and Angellotti, C. J., concurred.