53 Cal. App. 737
Cal. Ct. App.
1921
FINCH, P. J.

Plaintiffs were given judgment, under the provisions of section 1174 of the Code of Civil Procedure, for the cancellation of their lease of certain premises to the defendant, on account of his breach of one of the covenants thereof, and for damages to the lands leased and those occasioned by the unlawful withholding thereof after the default of which complaint is made.

The defendant was in possession of the premises under a lease for the term of five years from the first day of January, 1918. A large part of the lands leased was in alfalfa. [1] By the terms of the lease the defendant agreed “to *739 keep all stock off the alfalfa land when the same is wet.” The lease further provided: “If default shall be made in any of the covenants herein contained, that it shall be lawful for the said parties of the first part to re-enter said premises, and to remove all persons therefrom.” From evidence in which there was a substantial conflict, the court found: “That said defendant . . . has failed and refused to keep his said stock off of said alfalfa land when the same was wet; that said defendant suffered and allowed his stock, consisting of dairy cattle in large numbers, to run upon the land seeded to alfalfa upon said premises while the same was wet; that on numerous occasions in the year 1920, prior to the filing of the complaint in said action and the service of the notice requiring possession as hereinafter found, said defendant suffered and allowed his said stock to run upon the land in alfalfa so leased to him while the said land was wet; that there was a good stand of alfalfa upon not less than forty-five acres thereof; that by reason of its being wet, cattle pasturing thereon, bogged into same, tracked it up and injured and destroyed to a great extent the alfalfa growing, thereon.” The lease provided that “in the event that any of the alfalfa is tramped out or damaged by stock, said second party agrees to reseed the same at his own cost and expense.”

Appellant contends that “the idea that a forfeiture was intended to result from the mere circumstance of stock going upon the alfalfa land when wet is negatived by the provision requiring the lessee to reseed such land.” It is a matter of common knowledge, however, that alfalfa may be “tramped out or damaged” by livestock when the land is not wet. Therefore the provision requiring reseeding can be given effect independent of its application to injuries of the character charged. Doubtless the lessors could have waived the forfeiture and required the lessee to reseed the land but they were not limited to the latter remedy. The lessee expressly covenanted “to keep all stock off of the alfalfa land when the same is wet” and that his breach of “any of the covenants” should work a forfeiture. Under the findings of the court, he willfully refused to comply with his agreement and the choice of remedy for the breach is not with him but with the lessors.

*740 [2] Appellant urges that the notice to surrender possession was insufficient because it "did not require of him the performance of his covenant to keep his stock off of the alfalfa land while wet.” The contention is without merit. Manifestly the performance of the covenant was then impossible in so far as past breaches were concerned. Section 1161 of the Code of Civil Procedure provides that where performance of a covenant is no longer possible, demand for the performance thereof is not required. (Schnittger v. Rose, 139 Cal. 656, [73 Pac. 449]; Zucco v. Farullo, 37 Cal. App. 562, [174 Pac. 929]; Matthews v. Digges, [45 Cal. App. 561, [188 Pac. 283].)

[3] It is next contended that it was error to declare a forfeiture of the lease because, it is argued, the injury caused by the breach was capable of compensation in damages, citing section 3275 of the Civil Code. That section provides : "Whenever; by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty.” In the case of Parsons v. Smilie, 97 Cal. 647, [32 Pac. 702], it is said that the word "willful” as used in section 3275 means "voluntary” or "intentional” and does not imply a malicious breach. The opinion further states that "the authorities dearly show that the cases where compensation has been allowed were . . . where, as was said by Chief Justice Red-field, it would not be necessary to send the issue of the amount of damages either to a jury or masters, before the court could grant relief. In Wafer v. Mocato, 9 Mod. 112, it was said: ‘For this court never relieves but in such cases . . . where there is some rule to be the measure of such damages, to avoid being arbitrary.’ ” (See, also, Rayfield v. Van Meter, 120 Cal. 416, [52 Pac. 666].)

[4] The plaintiffs were given judgment for the amount due as rent up to the time the judgment was rendered at the rate of $4.05 a day, being one three hundred sixty-fifths part of the annual rental provided for in the lease. The answer alleges: "That the rental value of said premises is no more than is mentioned in said lease.” Conceding that *741 under the provisions of section 1174 of the Code of Civil Procedure a judgment for rent, as such, is authorized only in case of default in payment of rent, that section provides for the assessment of damages occasioned by the unlawful detainer, and the minimum damages in such a case is the rental value of the premises. In this ease the plaintiffs alleged that the rental value was six dollars a day and prayed for judgment at that rate. The defendant did not demur to the complaint but alleged that the rental value was what the court found it to be. The case was tried upon the theory that the rental value was an issue and it would be substituting form for substance to hold on appeal that the judgment must be reversed on the purely technical ground that the term “rental value” was employed rather than the word “damages.” In the absence of other damages shown, the rental value of the premises was the measure of damages, and it is not perceived in what manner the appellant could have suffered prejudice by the use of the one term rather than the other. It is a clear case for the application of the rule prescribed by section 4½ of article VI of the constitution.

[5] The court rendered judgment for “the further sum of $4.05 per day for each day hereafter during the time that defendant occupies said premises.” Respondents contend that this part of the judgment is authorized by the provision of section 3283 of the Civil Code, that damages may be awarded “for detriment . . . certain to result in the future.” In cases of this character a defendant may hold possession, under certain conditions, pending appeal. It may be months or even years before the defendant is required to surrender possession. It does not appear by what means the court can determine what damages are “certain to result in the future.” The value of the use and occupation may be greater or less than at the time of the trial. No statute or decision has been cited, and none has been found, which would authorize a judgment of the character rendered for future damages.

The judgment is modified by striking therefrom the following: “and for the further sum of $4.05 per day for each day hereafter during the time that defendant occu *742 pies said premises”; and, as so modified, the judgment is affirmed, neither party to recover costs of appeal.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 4, 1921, a majority of the Justices having failed to assent to the granting thereof.