Parish v. Studebaker

Plaintiff brought this action to secure judgment of ejectment against the defendants; to recover certain specified rents, and to recover damages for the alleged

The plaintiff, prior to the commencement of her action, had leased to defendant Studebaker one-half of a storeroom on a business street in the city of Los Angeles. The rental agreed to be paid under the written lease was the sum of $800 per month. The rental which became due on the 1st of July, 1917, for that month was not paid, and on July 13th plaintiff demanded payment thereof and gave notice to the defendants that unless such payment was made by July 16th she would exercise her option to terminate the lease without further notice. The rental was not paid, and the court finds that the defendants “thereby forfeited all right, title and interest in and to said premises, and every part thereof, under said lease, and plaintiff was entitled to re-enter and possess the same, and on the seventeenth day of July, 1917, plaintiff exercised her option to terminate such lease and did terminate the same, . . . and then and there demanded possession of said premises thereunder, but defendants did not surrender or quit the possession of said premises thereunder, but continued to hold, use and occupy the same until September 8, 1917.” The complaint in this action was filed on July 19, 1917. The court further determined that there was due to the plaintiff as rent and as the reasonable value of the use and occupation of the premises from the first day of July to the eighth day of September, 1917, the sum of $1,813.35; that the reasonable value of the use of the premises from July 17 to September 8, 1917, was the sum of $800 per month. As to the correctness of the calculation, no question is made by the plaintiff. It may be here mentioned that defendant Studebaker and the

[1] The findings are not sufficient to support the . judgment as to the cause of action set up in the supplemental cross-complaint. While the findings as made by the court are, in part, conflicting and uncertain, it is quite clear that in making up the computation of the amount of $1,300 damages which the court found had been suffered by defendant, $1,000 was included as being the loss suffered by the sale of the merchandise from the defendant Studebaker to his wife. The court had already found that the defendants were not lawfully possessed of the premises after July 17, 1917, and their occupancy thereafter, under that finding, was wholly without right, and it could not be said that any acts committed by the plaintiff after said 17th of July furnished legal basis for a claim that on the eighth day of September defendants were compelled to sell the merchandise at a loss and move from the premises. Had they obeyed the requirement of the law, they would have moved on the 17th of July. It is also uncertain as to whether the court intended to apportion the $300 of the $1,300 found as damages on account of the acts set forth in the original counterclaim and cross-complaint, they being act¡s wherein the plaintiff molested and annoyed .the defendants in the conduct of their business. For that reason alone the judgment would necessarily have to be reversed. There are other questions, however, to be decided.

Appellant asserts that in this action of ejectment no recovery could be had under the allegations of the counterclaim and cross-complaint because of alleged acts of the defendants, for the reason that no damages could be recovered unless an eviction, actual or constructive, had been worked against the tenant of appellant; in other words, that unless the acts complained of had caused the defendants to leave the premises, there would be no constructive eviction, and' admittedly there was no actual eviction. This rule relating to damages for eviction is undoubtedly the correct one. Counsel have cited many cases affirming the same, among them Kinney v. Libboy, 54 Misc. Rep. 595 , [ 104 N. Y. Supp. 863 ]. And it is further asserted by appellant that, under the facts stated, what

[3] Up to this point we have not referred to the further claim which was allowed to the defendants for the sum of $1,600, with ninety-six dollars interest. This claim, we think, was properly allowed as an offset. The court found that on the twenty-seventh day of December, 1913, the lessee delivered to the plaintiff the sum of $1,600, which was delivered under a written agreement which recited that the lessee had paid to the lessor $1,600 as payment of rents for the months of December, 1918, and January, 1919, for the premises leased, and that the $1,600 so advanced was to bear interest at the rate' of six per cent per annum. The agreement, which was set forth in the findings, further provided that in the event the lease was terminated or forfeited by Studebaker, or his successors, the money should become the property of plaintiff without affecting her right to damages which she might be entitled to. Clearly, this money was to be applied on the last two months of the lease term as payment for the use of the premises, and the forfeiture provision could only be made applicable by a showing that any damages which the plain-, tiff had suffered could not with reasonable definiteness be calculated. Such payments have become common to lease contracts. The record shows no ground for inferring that plaintiff’s damage by reason of the forfeiture of the lease could not be calculated, or that by the judgment herein her damages were not fairly ascertained and awarded to her. In conditions of the kind involved in the agreement last referred to, when a forfeiture is declared, the lease contract becomes at an end and the right of the tenant to further possession of the premises is lost. Such being the case, the situation would be that a lessee must either have forfeited the amount paid for the last two months of the term or be entitled to recover it. That such a recovery, under circumstances which this case illustrates, should be allowed, is held in Rez v. Summers, 34 Cal. App.

Another complaint made by appellant is that the court should have allowed attorney’s fees to her. The lease agreement contained the following condition: “It is further agreed that in the event said party of the first part shall commence any action to enforce any of the provisions of this lease, or any of its rights hereunder, that in any judgment recovered by it a reasonable attorney’s fee shall be included.” The lease agreement further provided that if the rental payments were not made within ten days after the first of the month, the party of the first part should have the right to declare the lease terminated without notice. By this action plaintiff did seek to enforce rights which the lease contract gave her. The complaint properly alleged that plaintiff had incurred a charge on account of attorney’s fees and such allowance should have been made, assuming that evidence was offered to sustain that claim.

Prom the conclusions announced it follows that the judgment should be reversed.

The judgment is reversed.

Conrey, P. J., and Shaw, 'J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 26, 1921.