174 P. 929 | Cal. Ct. App. | 1918
This is an action primarily of unlawful detainer, in which the defendant defaulted, and judgment was thereupon taken against him for the possession of the premises demanded and for damages, and for some other relief hereinafter noticed. He appeals from this judgment, *564 and makes three points for reversal, namely, that three causes of action are improperly united in the complaint, to wit, first, a suit in equity for the reformation of a lease; second, an action at law for damages for breach of the covenants of the lease, and, third, an action of unlawful detainer.
This court, upon an appeal upon the judgment-roll from a default judgment, will not consider the question of misjoinder of causes of action in the manner it would if a demurrer had been filed in the case upon that ground. If a complaint states a cause of action sufficient as against a general demurrer to sustain the relief actually given in the judgment, it will not be held invalid because it also states facts authorizing other relief. This follows from the rule laid down inAlexander v. McDow,
There are other and more serious questions which arise-upon this complaint, and the summons and service thereof, on which this default judgment is predicated.
The summons was the usual three-day summons provided in summary proceedings for the recovery of the possession of real property by section
It is alleged in the complaint that the defendant neglected and failed to perform various conditions and covenants of his lease, in that he failed and neglected during the calendar year 1916, and prior to the fifth day of May, 1917, to water all of the trees planted on said premises, or take the best care of them, and that he did not cultivate the space between the trees and all other ground where no trees had been planted, and that he did not furnish to the plaintiff vegetables and produce from said premises sufficient for the complete family use of the said plaintiff or to her satisfaction, and that he did not furnish all of the labor required to build a house, as agreed in said lease, and that he failed, and still fails, to furnish certain materials needed in the construction of said house, and that he had not kept in repair or good shape the pump, engine, or fences on the premises; that he had not constructed roads and paths required to be constructed by his lease; that he had not kept stock at the required distance from the house on said premises retained by said plaintiff, and that he has not properly cultivated or cared for said premises, and that he has committed waste on said premises — all of which things he was required to do and perform by the terms of the lease itself.
The default judgment, entered without findings, must be taken to have established all the facts aptly pleaded in the complaint, including a finding of the truth of the foregoing allegations. It is provided in subdivision 3 of section
Under this proviso, if the defendant had violated conditions of his lease which could not afterward be performed, it was not necessary to include in the notice a demand for performance of such violated conditions or covenants. It is manifest that Farullo had violated conditions of his lease which could not afterward be performed, among others that of watering the trees, of taking care of them, the covenant to cultivate the space between the trees and the ground where no trees had been planted, and to furnish Mrs. Zucco with vegetables and produce sufficient for her family use during the calendar year prior to the fifth day of May, 1907; and, perhaps, some of the other violated terms of the lease set forth in the above-quoted allegations of the complaint. These things could not afterward be performed. Therefore, a demand for the performance of these violated conditions, at least, was not necessary to the validity of the notice to quit. It is alleged in the complaint that Mrs. Zucco caused to be personally served on Farullo a notice in writing, wherein she canceled the lease, and demanded that within three days he vacate the premises and surrender the possession thereof. This, in the view we take of the matter, considering the character of the violations of the conditions of the lease, was all that was required in the way of notice. The violation of these conditions of the lease terminated it. Especially is this true of the violation of the condition against waste. It is provided in subdivision 4 of section
The allegations of the contents of the notice also are sufficient. It was not necessary to set out in full the notice served. The notice was alleged in accordance with its legal effect, and in the respect that it may be alleged either literally or according to its legal effect a notice to quit does not differ from other instruments.
So, also, the service was sufficiently alleged, for it is said in Cowdell v. Linforth,
It is also claimed that the amount of damages given was too large. The trial court is presumed to have taken the evidence upon this point, and as the allegations of the complaint as to damages are presumed to have been supported by the evidence in the absence of findings, we cannot interfere with the trial court's decision upon that matter.
The judgment is affirmed.
Kerrigan, J., and Zook, J., pro tem., concurred. *569