7 P.2d 697 | Cal. | 1932
The petition for a transfer of this cause to this court was granted for the reason that, in view of the authorities cited in said petition, we were of the opinion at the time that further consideration should be given to certain questions discussed and decided in the opinion of the appellate court. It was held in said decision that the action having been instituted prior to the expiration of the original lease was prematurely brought, citingPhillips-Hollman, Inc., v. Peerless Stages, Inc.,
It was further held in the decision in this case by the District Court of Appeal that the plaintiff could not recover in this action against the defendant who was the assignee of the original lessee for rent due after the surrender of possession of the leased premises by said defendant for the reason that defendant did not sign the original lease nor any acceptance of said lease, and entered into no new agreement to assume the obligation of the lease or to pay the rent. Respondent in his petition for a transfer of this action to this court contended that the opinion of the District Court of Appeal releasing the defendant from liability under said lease was contrary to and in conflict with the following: Baker v. Maier ZobeleinBrewery,
From what we have said it is apparent that we find no conflict between the opinion of the District Court of Appeal in this case and the authorities cited by plaintiff and considered herein. We, therefore, approve said opinion, and adopt it in connection with the foregoing statements as the opinion of this court. The opinion, written by Justice pro tem. Lamberson, and concurred in by Acting Presiding Justice Marks and Justice Jennings of the Fourth District Court of Appeal, is as follows:
"On August 25, 1924, respondent, Treff, leased to two persons certain storeroom premises at San Pedro for the term of five years, beginning September 1, 1924, and for a total rental of $9,000, payable in monthly installments *596 graduated from $125 per month for the first year to $175 per month during the fifth year. The lease was assigned to appellant, the lessor consenting thereto, on February 2, 1925, but appellant signed no acceptance or agreement to take over the lease. He occupied and paid rent for the premises from February 2, 1925, up to and including the month of February, 1926. The court found that appellants entered into possession of the premises and paid such rentals. No objection has been made to such finding, and the evidence is sufficient to support it. Appellant paid rent at a reduced amount during a portion of the time the premises were occupied by him, by agreement with respondent. In December, 1925, and January, 1926, the two parties had some conversations about the rent, and the lessor told the appellant that the rent, beginning with January, would be $150, and the appellant said, in effect, that he could not pay that amount because of business conditions, and that he was going to move out. He did quit the premises during the early part of February, 1926, and paid no further rents.
"The premises, apparently, remained vacant until January 1, 1927, when respondent leased them for $75 per month for the first eighteen months of a term, and at the rate of $100 per month for the following eighteen months, the total length of such term being in excess of the unexpired portion of the term specified in the original lease.
"On March 2, 1926, respondent lessor gave written notice to appellant that he refused to accept appellant's `attempt to surrender the possession of the premises', and demanded payment of the rent up to and including the month of March. Other demands for rent were made at later dates, both in writing and orally. The complaint in this action was filed on March 12, 1928. The court found that plaintiff notified defendant lessee that he would hold defendant liable for the payment of all of the rent reserved in the lease, and that plaintiff would re-lease the premises to the best advantage for the account and benefit of defendant and that said premises were relet for the benefit and account of defendant and for the best price obtainable therefor. The court gave judgment in favor of the respondent lessor in the sum of $2,625 after deducting the amount received by reason of reletting the premises. *597
"The appellant lessee appeals from the judgment and contends that plaintiff and respondent accepted the surrender of the premises from appellant on January 1, 1927, by reletting the premises without notice to the appellant that he intended to relet for the benefit and account of the appellant. He further contends that the evidence is insufficient to support finding IV in which the court found that the reletting was after notice, and for the benefit and account of defendant.
"The only testimony in regard to the matter is found in the testimony of respondent, Treff, and is as follows:
"`Q. Now at the time you rented this store at $75.00, when did that begin?
"`A. January 1, 1927.
"`Q. And at what time, did you have any conversation with Jacob Gulko in reference to renting the store to someone else?
"`A. I went to Mr. Gulko before that.
"`Mr. Camarillo: What Gulko?
"`A. To J. Gulko, and asked him to try to rent that store if he could and I would do the — somebody that I liked to rent it, and I would do the best I could to rent it. But he tried to tell me that he didn't have anything to do with it; so I done the best I could to rent the store.
"`Q. (By Mr. Mason.) What did he tell you at that time?
"`A. He says that he didn't have anything to do with it.
"`Q. What did you tell him?
"`A. Well I didn't tell him anything, I just went my way, there was no use to argue with him.'
"Under date of December 9, 1927, almost a year after the reletting of the storeroom, respondent's attorney addressed a `memorandum of rent due' from appellant to respondent and concluded the memorandum with the following statement: `The premises involved are now under lease at the best price obtainable, to-wit, $75.00 per month for the first 18 months of the term, and $100.00 per month for the next 18 months of the term, said term commencing January 1, 1927. In computing the rents due from Mr. Gulko, credit has been given for the rents payable under the present lease as shown above.' Aside from the testimony already quoted the record is silent as to what the respective parties did in *598 regard to exercising any control over the premises after their abandonment by appellant.
"The lease contained no provisions in regard to reletting. It provided in substance that should default be made in the payment of any portion of the rent, when due, and for thirty days thereafter, or in any of the covenants contained in the lease, the lessor, his agent or attorney might reenter and take possession of the premises, remove all persons therefrom, and at his option terminate the lease.
[3] "The rule is well settled that upon the surrender of leased premises by a lessee before the expiration of the term provided for by the lease, the owner of the premises has three remedies; first, he may do nothing and sue the lessee as each instalment 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. (Siller v. Dunn,
In the case of Phillips-Hollman, Inc., v. Peerless Stages,Inc.,
"`The rule is well settled that where a lease has been repudiated by a tenant, and the premises abandoned, and there are no covenants in the lease to the contrary, the landlord has a choice of but two remedies:
"`1. He may rest upon his contract and sue for each instalment of rent as it falls due. If this alternative be selected, obviously the action must be limited to accrued instalments, and no recovery can be had for future instalments, because, the lease being still in existence, no obligation to pay the rent arises until each instalment falls due.
"`2. He may take possession of the premises, relet the same and recover from the tenant any damages suffered thereby. Such damages will be the difference between the amount secured on the reletting and the amount provided for in the original lease. If this alternative be selected, in the absence of a covenant in the lease to the contrary, and *599
perhaps where the landlord has relet for the balance of the entire term (which latter point we do not here decide), the law is well settled that the landlord cannot recover in instalments, but must bring his action at the expiration of the original term, at which time the damages for the first time can be ascertained. (Oliver v. Loydon,
"In the present case the respondent having elected to take possession of the premises and relet the same and to rest upon his action for damages, we must conclude, upon the authority of the last-quoted case, that his action was prematurely begun and that the judgment awarding damages to him must be reversed.
"There is a further and more serious reason why the judgment of the trial court cannot be sustained. The only allegations appearing in the complaint in regard to the assignment of the lease and the assumption of its obligations by appellant are found in paragraph II and are as follows: `That thereafter and during said term, to-wit, on the 2nd day of February, 1925, the said Peretz and Addleson in writing assigned and transferred unto the said defendant all their right and interest in and to said lease and premises, and thereupon their rights therein and thereto became, and ever since have been, vested in the defendant, and the defendant thereupon entered into possession and remained in possession of said premises under said lease so assigned to him.'
"The court found in substance that it was true that after the making and delivery of said lease by the respondent to the original lessees on February 2, 1925, said lessees in writing assigned and transferred to appellant all their right and interest in and to said lease and leased premises and the said lease thereon, and that thereupon their rights therein became, and ever since have been, vested in the appellant, and that the appellant thereupon entered into possession and remained in possession of said premises under said lease so assigned to him and occupied said premises and `promised to pay said rent'. The finding that appellant promised to *600 pay the rent is not sustained by the evidence, the only basis for such a finding being appellant's occupancy of the premises and his payment of the rent during the period between February 2, 1925, and the month of February, 1926. The appellant did not sign the original lease or any acceptance of such lease and entered into no new agreement to assume the obligations of the lease or to pay the rent.
"In the absence of fresh contractual stipulations, there is no privity of contract between the assignee of the lessee and the landlord (Farber v. Greenberg,
"See, also, Bush v. Bastian et al.,
"In view of the conclusions which we have announced, we consider it unnecessary to discuss the various questions treated in the briefs of appellant and of the respondent."
For the foregoing reasons the judgment is reversed.
Langdon, J., Preston, J., Seawell, J., Richards, J., Waste, C.J., and Shenk, J., concurred.