161 P. 285 | Cal. Ct. App. | 1916
This is an action whereby the plaintiff seeks to recover damages for breach of the covenants of a written lease of real property. The court having granted defendants' motion for a nonsuit, judgment was entered, from which plaintiff appeals.
The lease was for three years, beginning April 1, 1913. Defendants paid the rent monthly in advance for the period of one year and vacated the premises a few days prior to April 1, 1914. Thereupon the lessor took possession of the premises and advertised for another tenant. During the month of April, 1914, he obtained another tenant to whom he leased the premises for a term of three years, beginning May 1, 1914, and at a rate of rental less than that provided for in the lease which had been made to defendants. Plaintiff claims damages in a sum equal to the difference between the rent which would have been paid under the lease of the defendants and the amount for which he was able to rent the property for the period of the unexpired term of the defendants.
Where a tenant abandons the leased property and repudiates the lease, the landlord may accept possession of the property for the benefit of the tenant and relet the same, and thereupon may maintain an action for damages for the difference between what he was able in good faith to let the property for and the amount provided to be paid under the lease agreement. (Bradbury v. Higginson,
In this case the plaintiff's testimony presents the facts clearly and without conflict. The defendants informed the *697
plaintiff that they were going to leave the ranch. They did leave, and omitted payment of the installment of rent which, according to the terms of the lease, fell due April 1, 1914. Without making any further demand upon the defendants, or in any manner informing them as to the course which he would pursue, the plaintiff took possession and made a new lease of the land as above stated. Upon these facts the plaintiff failed to establish any right of action for the damages claimed by him. In Auer v. Penn, 99 Pa. St. 370, [44 Am. Rep. 114], it was stated that if the tenant gives up the demised premises, the landlord may re-enter and relet, and that such action on his part raises no presumption of acceptance of a surrender, since it is for the advantage of the tenant that he should do so. Referring to that case and that proposition, the supreme court of California in Welcome v. Hess,
In examining the evidence we have not overlooked the proposed alteration of the lease, which alteration was signed by the lessor and delivered by the lessor to the defendants for their approval, nor the evidence of the circumstances connected with that proposed change in the terms of the lease. The defendants did not sign the proposed supplemental agreement, and it does not appear that any of the things which they did after it was delivered to them amounted to an acceptance or part performance. Throughout the transaction they appear to have acted consistently with the terms of the original lease until the time when they abandoned the premises and thereby offered to surrender the same, which surrender must be deemed to have been accepted by reason of the acts of the plaintiff as above stated.
The judgment is affirmed.
James, J., and Shaw, 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 December 14, 1916. *698