*1 her acquired interest whereby Atha transaction nature of the mortgages and various the amounts of the from Mark or no evidence which would There thus payments involved. findings making appellate court additional warrant affirming judgment part. for Atha in purpose for the recovery evidence is insufficient warrant Because the legal grounds advanced upon Atha theory appeal, even the new parties upon trial or judg- decision, I would reverse which is the basis ment. In Oct. 21947. Bank. 1952.] A. No.
[L. Respondent, Corporation), BARKER, (a LAWRENCE INC. BRIGGS, Appellant. v. WALTER M.
Benjamin Krystal J. Goodman Appel- & Paradise for lant.
Kenyon Lee, Thomas D. Mercóla, Gibson, Dunn & Crutcher and Sherman Jr., Welpton, Respondent. Olson,
Richard Culbert as Amicus Curiae on behalf of Respondent.
CARTER, J.Plaintiff, Lawrence Barker, Inc., recovered judgment entitling it to possession immediate of certain real property by leased it to defendant, Walter M. Briggs. The judgment provided that defendant was not entitled to take anything reason of his counterclaim and was not declaratory entitled a judgment by reason of his cross- complaint. Plaintiff attorney’s recovered costs and fees. controversy
The lease involved in the was entered into 10-year Barker, January 1, 1945, for term Lawrence Briggs, The lease Inc., lessor, and M. as lessee. Walter Spring consisting one lot located on premises covered be used city Angeles, was to Street in the of Los Briggs lease, parking as a lot. Pursuant lessee an automobile operated thereon entered into of this Subsequent execution to the parking lot or station. 70 other Briggs, operated approximately who another vicinity entered into Angeles, such lots in the of Los lease subsequent This parking lot lease with another lessor. prem- adjacent to the premises Main Street covered located on alley. The separated by public 20-foot question ises but to as referred question hereinafter be will provisions The lot. Spring lot and the Main Street Street of the lease are as follows: involved here agrees pay covenants and Lessee “Second: monthly Lessor rental for demised sum Fifty of One Thousand Two Hundred and Dollars ($1,250.00) per month, day 1st payable advance each monthly pay- In addition rental month of said term. *3 annually ments, agrees pay and the Lessee covenants any, by sixty (60%) per amount, if cent Lessor the any receipts Lessee, in of derived gross of the income or occupancy directly by the or manner, indirectly, or or use from any year, premises in calendar exceeds said demised one of ($15,000.00) Dollars. Lessee Thousand the sum of Fifteen statement, annually report or agrees furnish to Lessor reputable Public Ac- by a prepared and Certified certified countant, receipts from showing income or of Lessee gross said during preceding aforesaid, premises, demised said any additional year, paying the same time such calendar at be due the Lessor by report or shown said statement rent furnished, be report statement shall the Lessee. or Said due, rent, any shall be payment of additional and said of each the close made, reasonable time after be within a later lease, in no event year term of this and calendar year. calendar days of said sixty (60) after said close than by be borne shall report or statement expense of said the Lessee.” ‘‘ concurrently with deposited : has Lessor Third The Lessee this Lease certain stocks and securities. the execution of with . . deposited . are for the . . Said stocks and securities . security as, of, be held Lessor purpose and shall agreements, terms, all by the Lessee of performance . . Title to said lease. . of this and conditions covenants ‘deposit’, constituting originally said securities, stocks and name of shall be transferred or has been transferred ‘deposit’ hold said may continue to Lessor, and Lessor de Lessee, shall be in In the event that name. ... its own covenants, con or agreements, any terms, fault under payment for the covenants lease, than the other ditions of this thirty of period shall continue rent, of and said default default Lessee, or if by days, notice Lessor (30) after pay due and the same is rent, when payment made in continue of rent shall payment in the able, and said default default notice of thirty days, no period (30) for a may sell, pub at being necessary, Lessor payment of rent notice, any or all sale, or without private or lic . expiration of . . this Upon . . . stock or securities. time, or said in default at lease, provided Lessee be not consent of Lessor by the mutual its earlier termination by to Lessee Lessor be delivered Lessee, ‘deposit’ shall thereupon deposit shall in and to said rights all of Lessor Lessee, expira at said However, should cease and terminate. terminated having not been term, lease said stated tion of any of the under consent, be in default earlier mutual and conditions terms, agreements, covenants all by Lessor until held to be ‘deposit’ said shall continue having during said cured, Lessor of Lessee are such defaults therein, as if the rights original period of default all of expired. ...” lease had not term of this expressly agreed by covenanted and It “Ninth: any in case at time parties hereto default between any payment rent be made the Lessee herein shall day same shall upon the when the become due provided for (10) days, continue for ten default shall payable, such perform- be made the Lessee in case default shall terms, conditions or covenants the other ance performed, other than the by said Lessee to said lease *4 rent, and said default shall con- payment for the covenant thirty days after the service of (30) period for a tinue by the Lessor on the Lessee default written notice of such being necessary), payment of rent (no notice of default in the may enter into any eases, the Lessor . . . then and in of such re- any part thereof and upon the demised or and terminating lease, amd possess same, with or without any rent or breach prejudice to its remedies for any covenant, may, option, and in such event at its terminate hy giving do, notice said lease written its election so' to may, option, any part or at its or let thereof agent Lessee, foregoing as the or otherwise. . . . The given are, hereinabove to the Lessor and rights remedies cumulative, be, shall be deemed to and the exercise of one election, excluding deemed shall not be to be exercise any the Lessor at other or different time a different or remedy, given said inconsistent and shall be deemed to be any rights given or Lessor addition to other further granted paragraph to said Lessor the terms of ‘third’ herein, by law, part Lessor or and the failure any any right remedy hereby given to time to exercise or at right operate hy he it shall not deemed to as waiver remedy right such at other or time.” exercise future Beginning defendant had entered into and after covering lot, Spring when the second lease the Main Street would move the cars, lot was filled with defendant Street alley Spring across the “overflow” cars Street number of cars kept Main He records of the Street lot. he re- kept as to how much rental moved, so but no records he whether he example, For could not tell per ceived car. more each of cents, 50 cents or $1.00 had received he al- accounting plaintiff-lessor, In the cars moved. receipts on overflow cars per gross cent of the lowed time, oper- he At about this parked on the Main lot. Street on the Main night an attendant stationed ated both lots at entering Spring This attendant serviced cars Street lot. parking to them. Main tickets lot but issued Street Street kept of July, were During 1948, until no records lot, al- Spring gross receipts night parking on the Street night portion Main Street though defendant allocated a continued Defendant gross receipts Spring lot. Street driveway for the feeder and Spring to use the lot as a Street plaintiff discovered up Main lot until the time Street 27th, July On him desist. operation method of and told started subsequent given by plaintiff, defendant to notice entering night receipts derived from cars keep a record of parked Spring lot. on the Street action, of this Prior to commencement sub- required by reports mitted annual or statements reports although they certified, and the were not did fur- furnished were, exception, nish with one within the 60- year required by day period from the close of the calendar *5 1949, objection to the Plaintiff, prior to made no the lease. reports. report was sub- inadequate and The 1949 belated agreement. for in the lease provided mitted within the time July written Plaintiff', 22, 1949, served on defendant right repossess which claimed the to notice of default premises terminating preju- the lease and without any Defendant rights provided dice to other for in the lease. he of the claimed that was not in default under the terms then possession. lease and refused to surrender Plaintiff brought recovery premises, for of the action by the damages breach, for for counterclaimed plaintiff, pertaining party of a wall. covenant in the lease declaratory cross-complaint seeking Defendant also filed' a relief, alleging provisions that of the lease were the terms ambiguous, seeking adjudication uncertain and of the respective parties’ rights thereunder. cross-complaint alleged
In the it was that defendant had paid up until, the minimum rent and including, June commencing July 1, 1949; that he has tendered to plaintiff minimum per rent month plus the sum of $3,707.50 represented additional rent the calendar year of 1949 “in accordance paragraph Second of said plaintiff lease” but accept that has refused to tender; such money deposit special that the is now on in a bank account. alleged controversy It is also that an actual exists between parties interpretation as to the of the lease de- fendant claims gross is entitled to allocate income or receipts parking actually park lot used to particu- ear, plaintiff lar that, whereas claims under if the Spring enter the parked Street lot but are in the Main cars lot, receipts Street those cars should be credited to Spring alleges Street lot. further Defendant that his allocating gross receipts “method of income or as between demised parking operated and other lots as a unit with the demised constitutes a fair rea- sonable method of allocation and that cross-defendant re- just, proportional fair gross ceived its share income receipts occupancy attributable to the use or demised ’’ premises. alleges Defendant plaintiff had waived strict compliance pertaining with the terms of state- the lease money reports. requested, any ments or trial court was owing give was found plaintiff, due and defendant a rea- opportunity pay same, sonable him de- relieve any and from cancellation or the forfeiture of fault rights. his $1,250 per only
The minimum rental of month was the rent paid defendant and is not an issue in this case. Per- centage years 1945, rental for calendar 1946 and 1947 is dispute percentage issue. The centers around the years rental for the calendar 1948 and 1949. Counterclaim, *6 Defendant’s paragraph Defendant’s counterclaim was based on twelfth of the lease which “The premises reads follows: demised accepted by subject party agreement Lessee are to a wall respect building adjoining with to the southern of wall the premises the demised on the north. Pursuant to the terms of obligations said agreement, Lessor has certain maintenance respect party with to said wall. Lessor of shall not relieved obligations party said respect maintenance to said obligations by Lessee, except wall and are not said assumed rights in of the that should Lessee some manner avail himself party in wall party wall, of Lessor and to said and use said occupation said of the connection with Lessee’s use and premises, event, demised then Lessee shall be and such perform and all deemed to have assumed thereafter shall obligations of said respect of Lessor with to the maintenance party wall.” alleged during period
Defendant that approxi- mately August 15, 1946, 15, 1946, until October through the negligence plaintiff and carelessness of the deprived he was party of the use of the of reason wall becom- anyone ing using premises, a hazard to as a result of which wall was condemned the Building Safety City Department Angeles. of the of Los alleged It was rights he had not availed himself of the of lessor in and party wall he and that had not used init connection premises. He prayed damages with the use in the objected $3,731.20. sum of Plaintiff to the introduction of ground evidence under the counterclaim on the was it barred section subdivision 1 of the Code of Civil Pro- (liability upon writing) not founded cedure and that plaintiff’s counterclaim did not tend to diminish or defeat recovery. thereupon proof Defendant made an offer of city Angeles had, August show that Los about 25, 1946, re- served defendant with a written notice which quired immediately give up him vacate and the use and dangerous occupancy auto lot because of the parking notice as a result of this condition of the parking damage to his compelled to shut down the lot $3,731.20. sum It is defendant’s contention applicable that the in section statute of limitation found (action 337 of Civil Procedure founded Code instrument) written counterclaim was filed on that the 3, 1949, years October date of less than four from the alleged by plaintiff provision breach contained lease. of limi appear This the correct statute would to be Cal.App.2d Tagus Hughes, tation. In Ranch Co. v. 79], obligations prom all the court held that writing import ises necessarily which the must words regarded writing, under as included in the terms of the section Code of Civil Procedure. cause action here damages plaintiff did until breached the not arise provisions terms and of the contract. counterclaim,
Aside from the or not merits of the whether may type plaintiff’s depends counterclaim on the action and whether or will “tend diminish or (Code Proc., 438). plaintiff’s recovery” defeat Civ. § eject Plaintiff maintains action is not one that its ment, brought it was of the Civil but that under section 793 Code reads as “An action for the follows: *7 property right re-entry, of real granted, leased or with a may any right time, maintained at after the to re-enter has accrued, prescribed seven without notice section ninety-one.” Proc., hundred 1159 et (See Code Civ. § seq.) statutory plaintiff comply Inasmuch as did not requirements appear notice detainer, for it would unlawful that this is not such action.
If the action ejectment is one in appears as it to be and which proper (Roffinella in such a situation v. Roffinella, 191 Cal. ; Sulphur B. & B. v. Kelley, Co. 397] Cal.App.2d 908]), question then the arises whether the defendant’s claim tend will to diminish or de plaintiff’s recovery. feat money Plaintiff seeks no damages attorney’s other than fees, provided for lease, in the but such fees would prayer seem to be a damages sufficient entitle defendant damages by counterclaim for suffered him plaintiff’s because of alleged breach para twelfth graph of pertains the lease which the party maintenance of wall. Cross-Complaint Declaratory Belief
Defendant’s abused its dis- The defendant contends that the trial court declaratory relief under the cross-com- denying cretion findings plaint. The found that in view of the trial court judg- any declaratory made, there was no occasion to enter ment; plaintiff placed in immediate was entitled to be finding as to premises of the leased but made no repossession of the plaintiff whether or entitled to was specifically terminating More the lease. plaintiff, reports furnished to the trial court found that signed by a mem- although exception, prepared with one accountants, not certi- public ber a firm of were certified 60-day period fied and were not furnished within the they correctly gross income attribut- did not reflect the premises. It occupation able to the use and of the leased gross found revenue also that the attributable the leased year 1949 should have $35,485.60 for the been in- by $31,179.17, reported defendant; stead of sum to, by, plain- tendered defendant and refused $3,707.50 tiff, $6,291.36. should have been the sum of It was further plaintiff found that had not waived “these defaults” and compliance had not led the to believe that strict of the lease would be with the terms waived the future. specific made, Other than the references and the use of the defaults,” attempt words “these the trial court made no finding plain- construe the lease. No was made as to whether interpretation one, tiff’s of the terms of the lease is correct although may inferred that defendant was in default finding because of his interpretation no is made findings gross receipts report thereon. The as to the incorrect could, moreover, night park- refer either to the overflow and ing gross actually parked receipts receipts or to the cars Spring on the Street lot. percentage receive over and plaintiff rental was to monthly
above
to be the amount
the minimum
rental was
per
gross receipts
which 60
sum of
cent of the
exceeded the
$15,000,
gross
and was
income “derived
to be based on
occupancy
manner, directly
indirectly,
use or
by impli-
finding
than
premises.”
of said demised
No
other
provi-
judgment
cation from the
was made as to whether
*8
defendant
applied
the lease
to the manner in which
sion of
entering Spring
in
(parking
Street
operated the two lots
cars
the revenue
lot)
plaintiff
to entitle
to
the Main Street
so as
placing
failing
in
default for
to
received
thus
defendant
percentage
therefore other than on a
basis.
account
Education,
v. Board
Termination the of plaintiff maintain an Defendant contends that cannot terminating and ejectment lease, the that action in is forfeiture. entitled to relief from 8], although the
In Yates v.
Paragraph quoted third of the lease heretofore contains provisions relating deposit which was intended *10 security parties for performance terms, the faithful pro- conditions and specifically covenants the lease. It was plaintiff vided that could hold sell the securities so de- posited, default, defendant’s during, either or at the of, end term of appear the lease. would It that the reten- by plaintiff tion of this sum does not constitute forfeiture. Moreover, request defendant it be returned does that to any him. It is difficult to where see there is forfeiture involved here. pray
Defendant does any that if court finds that sum is by plaintiff him given owed to he be a reasonable time pay any within request which to it. Plaintiff does not dam- any ages, money attorney’s nor except whatever for fees and costs. The find, forth, trial court did as heretofore set that plaintiff defendant had not tendered the correct to amount percentage year for appear rental the calendar 1949. It would any finding as percentage owing to the amount of rental (under plaintiff’s lease) construction pure speculation any would be in the absence of records as daytime entering to the revenue collected cars Spring parked lot, lot but in the Main Street Street and the parked entered, Spring number of cars either or which in, during nighttime parking Street lot hours. any findings In the absence on material pre issues (wherein lay than
sented defendant’s default, other reports; belated and uncertified annual whether or not the paragraph second of the lease is to interpreted be according theory by plaintiff to the advanced or defendant; whether plaintiff right has without terminating the lease; plaintiff right whether has the security retain the deposit) the ease must be reversed. As this court said Philleo, 38 Dabney Cal.2d v. 69-70 P.2d “It is 648]: apparent justiciable there was a controversy between assignees. should have
plaintiffs and Clifford’s The trial court (Essick City Los rights. Angeles, expressly declared their ” Cal.2d warranting is in the trial Another reversal found error of evidence defend- court’s refusal to allow the introduction action not barred ant’s counterclaim inasmuch as the 337), (Code Proc., applicable limitations Civ. statute of § claim would tend to appears ejectment, and the one recovery. plaintiff’s diminish defeat Judgment reversed. J., con- Spence, J., Sehauer, J., and
Gibson, J., Shenk, C. curred.
TRAYNOR, J., Concurring and Dissenting. I agreethat in refusing relating court to admit trial erred evidence party wall and that the cause should therefore new trial on remanded the issues raised the counter provision claim. in the lease that On basis “Lessor obligations not be relieved its said maintenance with shall wall,” prove respect party said defendant offered to impliedly agreed plaintiff expressly lessor both “the keep repair party wall far as the lessee maintain and so conjunction liability with its contractual with concerned, agreement.” The party wall contiguous owner under a stating the quotes paragraph of the lease counterclaim alleges obligations respect party wall, parties’ *11 carelessly failed to negligently and “plaintiff herein that the words The a safe condition.” party said wall maintain carelessly” prevent do not “negligently and Laboratories, (see B. in contract L. of action proving a cause ; George P.2d pp. 59, 60 Mitchell, ante, 385] Inc. v. [244 P.2d Storage 33 Cal.2d Co., Van & [205 v. Bekins obligation alleged was based on 1037]), and since applicable to 337(1) appears be lease, section written erred court Accordingly, the trial of limitation. statute rejecting proof. of the offer dissenting opinion of in the issues, I concur other On the Edmonds. Mr. Justice Briggs of counterclaim does not
EDMONDS, J. The of any breach to maintain a with contract charge Barker pleading most, states a cause action in party At wall. against per- wall for lie either owner would tort which reason, For mitting private it to a nuisance. that become relating 337(1) to section of the Code of Civil Procedure “ any contract, liability upon obligation action or [a]n upon writing” applicable founded an is not the instrument statute of limitations. obligation express promise,
The lease does not contain or implied, whereby promises Briggs Barker that wall kept will in repair. prem- that the demised It states subject party agreement whereby ises are to a Barker wall has obligations. certain maintenance obligations What these are, Presumably whom, specified. they is not owed are party pro- other owner of the wall. The lease further vides Briggs that is obligations not to be liable for these except under alleged certain circumstances not to which are have obligated occurred. Barker is to remain party under the agreement. wall The most can this be construed from provision is Briggs, lessee, protected that against is to be assumption of a party. only covenant with some third The promise is Briggs that will any obliga- not be held liable tions under this separate agreement. alleged
The facts in the support counterclaim do not charge that obligation Barker Briggs pro breached liability tect him from party agreement. wall There is no claim that the cause is party action based wall agreement, nor is alleged agreement is writing and Briggs third-party beneficiary of it. (Cf. Division Lab. Dennis, Law v. 81 Cal. Enforcement App.2d 306 P.2d Hughes, Ranch
Tagus Cal.App.2d Co. 79], proposition obligations is cited for the “that all promises writing necessarily import which the words of the regarded writing, must in the as included terms under section Although Code Civil Procedure.” correct, statement of the rule of it is here that case is applicable. Tagus case, In the Ranch the instrument read: hereby “I acknowledge . . . confess I have stolen you” money. and embezzled from a certain sum court, quite properly, imply, construed a matter law, promise repay According the sum embezzled. court, obligation repay “The could be established use of writings these need there would be no for evidence *12 of appearing facts occurrences the outside those face of the instruments. Under these circumstances think we
668 bring the action writings question the sufficient are men- four-year above provisions statute within (P. 131.) tioned.” support upon
In relied O’Brien conclusion, the court rule as Kmg, stated the 631], 769 P. Cal. upon follows: “A of action ‘founded instrument cause is an writing’ liability grows or contract, obligation, when remotely ultimately, or but ‘out written instruments not ” immediately.’ (P. case an 772.) The concerned O’Brien O’Brien, reading: instrument from Miss Hannah “Received . “The per . . . . The court $450 . at cent interest.” said: only reasonable—indeed, reasonable—meaning of these money specified words is a loan that the received as at the writing, being interest A rate. loan established promise law repay implied by necessary is inference and fact. promise language Such is in the embodied writing, although expressed promise not in the words ‘I ” pay.’ (P. ‘merely 773.) According court, “promises implied by by writing, i.e., law’ from a evidenced situation quasi contracts, statutory provision are not under within the directly discussion. promise arising must be one writing itself, terms. in deter- included But mining obligation ‘supported express whether is promise or stipulation instrument,’ in the we must written regard, obliga- in the writing, included all terms tions promises necessarily import.” which its words (P. 774.) Co., 111 McCarthy
In v. Mt. Tecarte & W. Cal. L. plaintiff, corporation, at 956], director of the rely upon a the board of directors tempted to resolution of company. superintendent The resolu appointing him any compensation position, plain for the did not fix tion none unless the raised an tiff was entitled to circumstances implied assumpsit. The said: “But cause of action court upon upon writing, a contract founded an instrument not merely meaning code, because it is some within indirectly way instru remotely connected such an a link in chain ment, the instrument would be because establishing the cause of action. In order to be of evidence writing, must, upon an instrument in the instrument founded thing itself, nonperform a contract to do contain Therefore, brought.” (P. 340.) the action is ance of which concluded, plaintiff’s being of action, cause the court 339(1). instrument, was barred based a written section *13 follows; “Appellant could not the situation It summarized affirmatively no com- that showing from precluded have been it upon ground that expected, intended or was pensation instru- a written to contradict attempt have been would upon an action, it is any cause respondent have If ment. expectation respondent understanding appellant may implied, if be compensated, would that circumstances of the from of the sufficient, all evidence be (P. 342.) upon any instrument.” case, not written ease, provision present the lease Barker In the that will separate party obligated upon wall agreement remain liability of its in tort may be some evidence for failure to precluded the wall. But it not be maintain would from it integration proving subject that is not rule liability. to such appears, obligations all From that under the agreement may paint have no than been more light or promise no The lease contains that wall. Barker repair will wall, or so maintain it that it will not become a nuisance. obligation, proved If is Barker’s can be only by evi- agreement of the or dence other evidence outside the lease. upon The counterclaim is based negligence Barker's and care- maintaining the wall, lessness as a result of which it be- liability, any, came hazard. Barker’s for this condition “immediately” not does arise out of a written instrument. The lease does not contain a keep contract to the wall in repair, nonperformance of which the action brought. There- fore, action is barred 339(1) section of the Code of requires Civil Procedure which that an action “upon a con- tract, obligation or liability not founded an instrument writing” must be commenced within years. two ground
As another
for reversal of the judgment, it is held
Briggs
stated a cause of action for declaratory relief
and the
deciding
trial court erred in
that he was not entitled
judgment. (Dabney
Philleo,
to such a
v.
Barker’s paragraph of Briggs in default under the second pay statements lease to furnish certified failure receipts gross income or per of 60 additional rental cent any directly or indi- manner, $25,000 excess derived pleader premises. rectly, occupancy the use defaults, reenter right, by reason of these claimed the Accord- terminating the lease. repossess the does not author- lease complaint, the ing supplemental receipts the demised between proration ize allocation belonging Barker. lots not parking and the other *14 to and answer complaint By answer to the amended file a to failure Briggs admitted his complaint, supplemental proper in 1948, time but certified statement within claimed provisions of the lease in this re- had waived the that Barker years, by accepting, prior unverified statements spect later specified. He denied that 1949 statement the time than he comply Briggs lease. also denied that with the did not provided in the lease pay the additional rental had failed to Therefore, he Barker entitled said, is not and was default. terminating the repossess without to reenter and any, if over the According Briggs, dispute, “The to lease. . manner in which . . arises from the of rent owed amount operation gross receipts from the apportioned has occupancy the use or parking lots defendant’s all of receipts . is not entitled to premises. . . Plaintiff the demised adjoining not owned lots parking of cars on from the ’’ plaintiff. cross-complaint, Briggs in his it was As stated his custom premises and two other a operate single the demised lots as alleged to time and that he unit from time maintained fairly gross profits to show “the attributable to records ’’ premises. He occupancy of the demised claimed use and gross receipts the lease “to allocate income or right under particular parking parked lot on which a automobile parked enter the demised but are when cars overflow pleaded adjoining He lots.’’ also “his method al- receipts prem- the demised locating gross income between operated as unit with the parking and other lots demised ises and reasonable method of alloca- premises constitutes fair pro- just, fair and received and that cross-defendant tion receipts portional gross income or attributable share of the According premises.” occupancy demised use or rights Barker Briggs, he secures a declaration his unless rights of cross- to terminate and cancel the “will endeavor use . and will forfeit and complainant in and the lease. . cross-complainant put up on said lease.” deposit of the simply joined by pleadings were whether The basic issues so, and, lease Briggs was in default under the terms terminat- repossession whether Barker entitled to alleged payment Insofar as default ing the lease. concerned, Briggs rentals is additional asserted that he was receipts entitled to allocate between the several lots. No new by the cross-complaint issue was raised for declaratory relief. purpose “The seq. of section 1060 et of the Code of Civil Procedure, providing for declaratory actions for relief, is to provide ready speedy remedy in cases of actual contro versy relating legal rights and duties respective parties. By section 1061 the permitted court is to refuse to power exercise the case where its declaration or deter necessary mination is not under the circumstances. This is such a case. All the issues raised in the cross-complaint can readily special in the trial determined defenses raised and, in the answer because affirmatively appears upon the pleading, face the trial court properly exer refused to power granted by cise the (Welfare these sections of the code.” ell, Inv. Co. v. Cal.App. 275, Stow ; P.2d 529] Corp. Sunset Scavenger Oddou, Cal.App.2d 92, 96 [53 *15 The trial court found that in 1946 Briggs did not furnish report prepared required a and certified by the lease and reports that the supplied which he in 1947, 1948 and 1949 presented were neither certified nor within the pro- time by regard vided the lease. With to these reports, it said that, “It reports correctly is not true that these reflected gross the income occupation attributable to the use and by the defendant ” premises. of the portion leased aAs of this finding concern- declared; ing reports, the court tiff, . . “It is not true plain- that the defaults,
. waived these or led the defendant to believe compliance that in strict the future with the terms the Lease required.” would not be
The court then found that a report certified was furnished proper year within the time for 1949, the but that it showed gross a revenue attributable to the leased $35,- 485.60,rather than the sum of $31,179.17 Briggs which reported said, correctly report, This the court did not
to Barker. gross prem- reflect income attributable to the use of the the payment of $3,707.50 ises. The court also found the that action, Briggs which tendered after commencement of the $6,291.36. From these should have been the amount findings, Barker a the court concluded that was entitled to property and judgment for immediate of the declaratory judgment. Briggs entitled was not findings, now Because of asserted deficiencies the is However, judgment even held that the must reversed. “may findings court insufficient, we assume the are to, those findings contrary to, or in addition make of fact 956a.) In Proc. (Code the trial court.” Civ. made § 970], Tupman the Haberkern, 256, v. Cal. [280 ‘ that, ‘when explained purpose of section 956a court the justice would seem possible, ever the interests of to make power have the require, reviewing court should by the contrary those made findings to or addition to new or on new evidence court, presented record either on the trial court, refer of the all with under the direction to be taken to the end pleadings, framed material issues ences to may appealed from be affirmed judgment or order that the litigation terminated.” constitutional and further affirm, court empower this statutory provisions entry judgment final are to be of a or direct modify may be dis end that cause liberally toward construed 4%; Code Const., VI, art. single appeal. (Cal. of on a posed § Inc. v. Van Enterprise, 956a; American 53, Proc. Civ. §§ Tupman ; v. Haber 210, 219 P.2d ante, pp. Winkle, [246 935] 537, 547 P.2d Manton, 21 Cal.2d Gudger v. kern, supra; [134 Cal.App.2d Homes, 58 Culjak Better Built v. ; 217] 492].) P.2d declaratory error in an action relief consists Where the decreeing judgment entering of dismissal rather than complainant expressly is not entitled to declarations (as dismissal), judgment implied in his favor modify judgment by inserting express dec- may court City Los (Essick rights parties. laration In 624-625 Angeles, 34 Cal.2d although affirmed, modified, judgment Essick case erroneously rights failed to declare the the trial court record was parties. Because the evidence contained modify judgment, empower court to sufficient *16 judgment prejudicial. was not entering error of dismissal required. Under no reversal circumstances, implicitly approves the trial court’s present The decision specifica- findings, they exception far go, as Briggs should of additional rental which tion the amount unnecessary judg- which is paid, have a determination findings judgment ment. These are sufficient to sustain allowing attorney’s fees restoring possession Barker to findings necessary, if costs. Even additional were supply modify record would enable this court to them judgment. No has been offered aid extrinsic evidence interpretation of nor is it contended lease, the terms of the required. is in evi- such evidence is The document by may readily by interpreted dence and this court as the trial court. majority gone halfway have supplying findings say they missing by are determining that, Briggs if has
breached the terms of Barker is entitled to terminating may the lease and security retain the deposit in accordance with its terms. This conclusion is based upon the interpretation of correct provisions. the lease How- ever, no issue was cross-complaint raised concerning points either of these and there necessity was no grant declaratory relief for purpose the sole deciding them.
“As to the principles governing appellate courts in con- sidering the adequacy findings dispose sup- issues and port judgment general it is a rule that though ‘Even a find- ing might clearly have been more phrased, it is sufficient if language is clear enough to indicate what the in- court tended; and findings there are support sufficient to judgment, they are not vitiated the unintelligibility of Any uncertainty others. findings in the will be construed so support judgment as to rather than to defeat it.’ ... It is also to be noted that while findings full required upon are all judgment material issues will not be appeal set aside on express because a failure to finding upon make an issue finding thereon, if a consistent with judgment, results necessary implication express findings which are (Richter v. Walker, made.” Cal.2d 639-640 “Also, settled, spite is well of the fact [i]t section provides the Code Civil Procedure that facts and separately conclusions must be stated, finding may that a *17 mistakenly among although placed regarded as one of fact, 771, Stanto, v. 211 (Linberg Cal. the of law.” conclusions find 9, 555].) is also the rule that P. 75 A.L.R. “It 776 [297 by they reference to ings if can be made certain are sufficient Com., (Ethel Acc. 219 D. Industrial Cal. Co. v. the record” (Kennedy & Shaw 699, 919]) pleadings. the P.2d 708 [28 457].) P. Co., 584, Cal. 585-586 Lbr. v. S. S. Const. 123 Co. [56 ideal, far from Although findings in this case the are in weakness certainty, the have been drawn with more should supra.) fatally (Richter Walker, v. them not defective. is under Briggs was default Upon ultimate fact of whether the not he did provisions lease, found that of the the court the the use and to gross receipts attributable report proper Prom a review premises. occupation the leased to finding was intended also record, it is obvious that of additional amount encompass pay a to the correct failure rental. object majority findings report of an to incorrect they
gross receipts upon ground that could “refer either night parking receipts gross or to the re to the overflow and actually ceipts parked Spring on cars on the Street lot.” “ finding upon However, the ultimate fact court’s [t]he Janes, (Estate sufficient.” and was therefore issue necessary 512, 438].) P.2d It was for 18 Cal.2d [116 probative upon the facts from it also to find which court comply pro of failure to with the the ultimate fact deduced (Klein Milne, v. Cal. the lease. visions 420].) finding Briggs properly failed
Ample support for the undisputed receipts provided by the gross is for to account year, kept no records that, more than a were evidence breach of the lease receipts night parking. This gross possession. right give to Barker the to of itself is sufficient in the record that addition, is some indication In there contrary Briggs’ to the lease to intended construe trial court However, receipts to right various lots. to allocate of a claim evidence, it is by finding being supported other sufficient question in- unnecessary court to consider that for this theory course, is, “It terpretation. immaterial may is not identical judgment be affirmed upon court, by by trial since upon plaintiffs relied with that only plead prove facts required sufficient plaintiffs are af- judgment court’s must be justify relief, and the trial are sufficient findings, supported evidence, firmed any legal theory.” (Sears granted on v. the relief to warrant 140-141 Rule, 27 Cal.2d specifically
Among findings of is none directed fact there right possession question of Barker has the whether terminating However, there is so-called the lease. a plaintiff is providing-. of law “That entitled . . . conclusion placed possession prop- of said real to be the immediate finding erty.” is, effect, an ultimate fact in This may (Linberg Stanto, supra.) issue, and treated as such. finding fact, Even if were not be considered is determination Barker entitled immediate necessary property implication results from the ex- Briggs press finding.that is in default under the lease. It majority, obvious from the construed that, *18 Briggs default, possession is in Barker is entitled to with- terminating finding interpreted out lease. The must be right obligations to include continue of the lease. only pleadings issue raised was whether the lease had been breached so that Barker right possession had the terminating it. There was no issue as to whether right possession, right had the but not to continue effect. lease in
Construing findings support so as to the judgment (Richter rather than defeat it v. Walker, supra,) I conclude they sufficient are to determine the cause without the necessity making findings. additional Those which were made, supported by evidence, sufficient eliminated neces- sity determining Briggs’ whether interpretation of the regard lease in to allocation of rentals was correct. The court having Briggs found longer was no entitled to property, interpretation his of the additional rental provision became immaterial issue and the failure to find prejudicial thereon does constitute (Merrill error. Harrison, 1, Gordon & 208 Cal. P. 996]; Woodhead v. Wilkinson, 181 Cal. A.L.R reasons, I For these would judgment. affirm the Respondent’s petition a rehearing was denied November 3, 1952. J., Edmonds, and Traynor, J., were of the opinion ' petition that the granted. should