284 P. 232 | Cal. Ct. App. | 1930
Plaintiff began this action to recover from the defendants certain sums set out in the complaint as the respective liabilities of the defendants as stockholders of Dunn-Brett Furniture Company, a corporation, on account of an alleged indebtedness of said corporation based upon the provisions contained in a lease of real property, entered into between the plaintiff and the Dunn-Brett Furniture Company on or about the eighth day of March, 1926. At the conclusion of the plaintiff's testimony the court granted the defendants' motion for a nonsuit, and from the judgment entered thereon the plaintiff appeals.
The portion of the lease relied upon by the plaintiff for a recovery is in the words following: "In the event of the lessee surrendering the said demised premises prior to the expiration of the term of this lease, responsibility for the payment of the rental herein provided shall continue until such time as the lessor shall have effected a rerental of the said premises satisfactory to him." Notwithstanding this provision in the lease, it is the contention on the part of the defendants that the testimony of the plaintiff established beyond question that by his own acts he had accepted a surrender of the lease, had repossessed himself of the premises in his own right and for his own uses and *156 purposes, and had by operation of law released the defendants from further liability for the payment of rent. The lease in question provided a certain stipulated rental and also specified the purposes for which the premises were to be used, to wit, as a furniture and furnishing goods store, and that no other or different use of the said premises be made by the lessee without the written consent of the lessor first had and obtained. The lease described a building consisting of six stories in height and a basement situated on Ninth Street between K and L, in the city of Sacramento, and excepting from the provisions of the lease certain described portions of the premises theretofore leased to a different party. On or about the eighth day of August, 1927, the Dunn-Brett Furniture Company delivered to the plaintiff the key to the premises described in the lease, and at the time of the delivery of the key the plaintiff handed to the president of the corporation a notice to the effect that he would still hold the corporation liable for rent until the premises were released. It is further shown by the testimony that prior to the surrender of the premises by the Furniture Company and the delivery of the key to the premises to the plaintiff, the plaintiff had for about three months made some effort to find another tenant for the premises, the plaintiff having been informed by the officers of the Furniture Company that the business of the company was in failing circumstances and that the company would not be able long to continue in business. There does not appear to be any testimony in the transcript to the effect that the plaintiff made any effort to obtain a tenant for the premises after the surrender thereof by the Furniture Company on the eighth day of August, 1927, or during any of the time for which judgment is asked in this case on account of rentals alleged to be due, nor does the testimony show what the efforts were by the plaintiff to relet the premises, or upon what terms they were offered, but from matters hereinafter referred to we do not deem this material. The testimony shows that at or about the time the Furniture Company gave up the key to the premises, the plaintiff put into execution an idea or thought that he had entertained in relation to converting the premises into an hotel. His language was, "to throw it into an hotel so we could rent it." It further appears from the *157 transcript that on or about the seventeenth day of August, 1927, the plaintiff began the remodeling of the six-story building herein referred to so as to make it available for hotel purposes, and that this remodeling was finished on or about the fifteenth day of February, 1928. The period of time for which the plaintiff claims rent being from the date when the defendant surrendered the premises up to the fifteenth day of February, 1928, when the same were ready for occupancy for hotel purposes. It further appears from the transcript that the cost of remodeling the premises was somewhere between fifty and sixty thousand dollars; that the work of remodeling required approximately six months. The plaintiff's testimony is to the effect that during the time of remodeling the premises it would have been impossible for any tenant to have taken possession thereof. The questions and answers in this particular are as follows: "Q. In other words, the property during that period was entirely untenantable? A. Absolutely, until we got it finished. Q. There can be no doubt about that, can there, Mr. Siller? A. No." The plaintiff then described in the testimony the manner in which the five upper stories of the building were divided into something like 100 rooms containing baths, etc. The questions and answers of the plaintiff, so far as need be quoted to illustrate this point, are as follows: "Q. Mr. Siller, what did the work of remodeling in general consist of? A. The work? Q. Yes; just describe it generally to the court. A. Just to lay it out into rooms, put the light-well into the center of the building, and all that kind of work that — to throw it into hotel rooms. Q. I understand then, Mr. Siller, it consisted of practically an entire dismantling of the interior of the building, did it not? A. Of the upper floors, it did, yes." It does not appear to be questioned that the remodeling of the building does not come within the terms of repairs mentioned in the lease, nor does it appear to be questioned that the character of the remodeling of the building precluded the possibility of its being used as a furniture and furnishing store. Upon the testimony of the plaintiff showing that the remodeling of the building was not in the nature of repairs, was such as to preclude the further use of the premises for the purposes mentioned in the lease, and that the plaintiff intended to and did take possession of the *158 premises for the purposes of converting them to a different use from that mentioned in the lease, and was doing so not for the benefit of the lessee, but for and on his own account, a nonsuit was granted. There is nothing in the testimony indicating that the plaintiff consulted the lessee as to the remodeling of the premises, or that it was understood that the premises were being remodeled for the uses and purposes of the lessee, or for anyone except the owner thereof. We think the testimony is conclusive that the plaintiff took possession of the premises solely as owner in his own right and not in the furtherance of any of the covenants of the lease, and that it was in execution of a plan to convert the premises into an hotel and change its uses entirely from that limited in the lease.
[1] The law seems to be pretty well settled that upon the surrender of leased premises by a lessee before the expiration of the term provided for in the lease, the owner of the premises has three remedies; first, he may do nothing and sue the lessee as each installment of rent becomes due, or for the whole thereof when it becomes due; second, he may treat the lease as terminated and retake possession of the premises and use the same for his own purposes as the exclusive owner thereof; or, third, he may retake possession of the premises for the tenant's account and hold the tenant in damages for the difference between the rentals provided for in the lease and what, in good faith, he was able to procure from a reletting. [2] Only one question is involved upon this appeal, and that is, notwithstanding the clause in the lease which we have quoted, the plaintiff abandoned the lease and by his actions is now estopped to maintain this action.
In the case of Welcome v. Hess,
In the case of Meeker v. Spalsbury et al.,
There being no evidence to the contrary, we think the order of the trial court in granting the nonsuit was correct, and the judgment entered thereon should be and the same is hereby affirmed.
Thompson (R.L.), J., and Finch, P.J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 11, 1930.