95 P. 1042 | Cal. Ct. App. | 1908
This is an action for unlawful detainer, brought against defendant Morris Levy after default in the payment of rent and three days' notice in writing demanding its payment and possession of the premises, under subdivision 2 of section
The jury rendered a verdict in favor of defendant and against plaintiff, which the court at once upon its own motion vacated, and granted a new trial, and from this order defendant Levy has appealed to this court.
We say the court upon its own motion vacated the verdict and granted a new trial advisedly, for although the statement of the case upon appeal shows that the attorney for the plaintiff *729
asked the court to make such order, and called its attention to the provisions of section
It is also contended by appellant that the court erred in vacating the verdict upon its own motion.
The facts of the case as shown by admissions and uncontradicted evidence are as follows:
On the first day of November, 1905, appellant leased the premises in suit from one Dana for a period of two years from said date at a rental of one hundred dollars per month, payable in advance each month, and took possession under said lease. Dana subsequently granted the premises to plaintiff. For each of the ten months beginning May, 1906, and ending with February, 1907, defendant sent a check for the sum of $100 to the landlord or his or its agent, which was in each instance refused and returned to defendant. On the twenty-first day of February, 1907, there being ten months' rent due and unpaid, plaintiff gave three days' notice in writing to defendant, requiring its payment or possession of the premises, and served a copy thereof on the subtenant as well. This notice was in all respects correct in form, and correctly stated the amount then due and unpaid. Defendant did not *730 pay such rent or any part thereof, or surrender possession, and on the twenty-sixth day of February, 1907, this action was brought.
Upon this state of the case the court might properly have directed the jury to find a verdict in favor of plaintiff for the possession of the premises and the sum of $1,000, unpaid rent. The court, however, submitted the case to the jury under some general instructions, and upon the return of a verdict against plaintiff and in favor of defendant, on its own motion vacated the verdict.
In this the court committed no error. Section
Nevertheless, if the order of the court can be sustained upon either ground allowed under section
The jury brought in a general verdict for the defendant. This necessarily carried with it an implied finding that some fact essential to plaintiff's recovery did not exist. Yet upon the record before us every fact essential to a recovery by plaintiff was admitted or proven without contradiction. Indeed, the only contention of defendant seems to be that because he had each month tendered the rent for that month this action will not lie. But the tender each month did not pay the rent. There is no pretense that defendant deposited the rent in any bank for plaintiff as provided in section
Upon the facts above stated plaintiff was clearly entitled to a verdict for the possession of the premises and for $1,000 as rent money. The court might properly have directed the jury to find such a verdict. A verdict for the defendant could only be rendered in plain and palpable disregard of the evidence.
The fact that defendant each month tendered one month's rent did not entitle him to refuse payment and to retain possession of the premises after plaintiff served him with the written notice authorized by subdivision 2 of section
The jury plainly and palpably disregarded the evidence, and the court for this reason was justified in assuming that the verdict was rendered under the influence of prejudice.
The order is affirmed.
Cooper, P. J., and Kerrigan, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on April 15, 1908.