Whipley v. Dewey

| Cal. | Jul 1, 1857

Murray, C. J., after stating the facts, delivered the opinion of the Court—Burnett, J., concurring.

The first point which I propose to examine is the character of the agreement between the plaintiff and Dewey, concerning the erection and removal of the houses.

It is well settled by modern decisions, that a tenant may remove buildings erected by him at any time before the expiration of the lease, and the deduction sought to be made from this proposition is, that the agreement between the parties (they both being aware of the law on this subject) was understood to confer upon the plaintiff something more than his strict legal right. In other words, being allowed by the law of his contract, to remove the buildings at any time before the expiration of his term, he sought and obtained the further privilege of removing them after the exjiiration of his lease; it would have been useless to have solicited as a favor what he already possessed as a right, and the only inference to be drawn from the agreement is, that he was to be allowed a reasonable time after the expiration of his lease to remove his buildings.

This is carrying the doctrine of presumption as far at least, as it would be safe to go, and if we are allowed to indulge in presumptions or inferences, the most natural one' would be, that at the date of this contract, the parties imperfectly understood their rights, and therefore stipulated for precisely the same privileges which the law of the contract would have afforded. Suppose, however, the understanding to have been that Whipley should have a reasonable time after the expiration of his term, to remove his buildings, it must be borne in mind that the moving cause or consideration of this agreement, was the lease under which the plaintiff entered. It appears from the declaration, that before the lease expired the defendants re-entered and took possession. Whether this was by agreement, or on account of a forfeiture for non-payment, or some other cause, does not appear. The pleadings must be taken most strongly against the pleader, and the inference is irresistible, that the defendants forfeited their lease.

It is well settled that a tenant cannot remove erections, made by him on the premises, after a forfeiture or re-entry for covenant broken. Admitting that the defendant had agreed to allow the plaintiff to remove, after expiration of the lease, the intention of the parties must be confined to the legal expiration thereof, by its own limitation, and not by the wrongful act of lessees terminating the same. The consideration of the contract, as before remarked, was the lease, and the plaintiff, having voluntarily or illegally terminated the same, ought not to be allowed to set up a right under the contract.

But it is contended', admitting the plaintiff had no right to remove after the expiration of the lease, he still had a moral right to the improvements, or the value thereof, and that this is a sufficient consideration to support a subsequent promise.

It is difficult to see how there was any moral obligation on the part of the defendants, to pay for the plaintiff’s improvements, particularly after he had broken his covenant, and forfeited his lease. Besides," it is extremely doubtful from the testimony, whether there ever was a sale or an agreement to pay the plaintiff, except on condition that he would not interfere with the proposed sale of the lot. In the event of a sale he would have been entitled to payment, but as there was no sale there was no consideration to support the promise.

Judgment reversed, and cause remanded.