Camp v. Matich

This is an appeal by defendant from the judgment and from an order denying a new trial in an action for unlawful detainer, in which plaintiff was awarded possession of the premises in dispute and defendant was ordered to pay damages amounting to $1,351.36, plus costs, and permanently enjoined from removing or altering certain buildings and premises. The notice of appeal specifies that it is taken from “the whole thereof” but appellant’s opening brief specifies: “The appeal is taken to a portion of this amount, namely, Six Hundred Fifty-One and 36/100 Dollars ($651.36), which amount was ordered as damages for the removal of certain property from the premises of the respondent, and also that portion of the judgment which permanently restrained the defendant from entering, removing and tearing down any of the buildings on the premises of the plaintiff.”

Appellant does not call attention to any claimed error in ruling on evidence; rather, it is the sufficiency of the evidence to sustain the findings and the legal conclusions drawn therefrom that is presented upon appeal.

In substantiation of the findings, the evidence shows that the John Cownie Trust is the owner of the designated real property situated in the city of San Jose, California, and that it has been such since the latter part of March, 1946. L. D. Bohnett, defendant’s counsel, testified that the property “was formerly owned by the Thermotite Construction Company, in which I was somewhat interested, and my brother was running it. They wanted to borrow money. I had a client who was willing to lend them the money on this property if I would sign the note. I signed the note, and when the Corporation went flat, I had to take the property over to protect myself. ’ ’ In 1936, defendant, doing business as the San Jose Concrete Company, went into possession of the property “on a month-to-month basis.” Defendant continued in possession when Bohnett sold the property to B.

A witness who subsequently leased the property from plaintiff at $150 a month testified that he had visited the property around May 10, 1946, and also during the trial of the case. He further testified that ‘‘starting from the rear of the property, the northeast side, there was one wooden shed back there, and in front of that there was a frame construction with half of it roofed, and the rest of it open; and to the southeast of the property there was an open corrugated iron shed. I don’t know what the dimensions were, they’re 23 x 18, something like that, approximately. . . . then there was a main shed, I think 40 x 60, in the front, corrugated iron. Then there was these small sheds that were adjoining, and they were wooden frame, corrugated top, and the next section was corrugated iron building 28 x 28, I believe, and it was about 18 feet high. It had sliding doors.” He also testified that this 28 x 28 building was removed in its entirety, and he described the interior of the corrugated iron building 40 x 60

Defendant was called under section 2055, Code of Civil Procedure, and testified that on two occasions he paid Mr. Eimple $600 for six months’ rent. He testified that in May or July of 1945 he asked Eimple if it would be of help to him if he paid rental for six months in advance. “Mr. Eimple, he gave me answer, he says, ‘This is going from month to month.’ I said, ‘I understand that.’ Like he say, ‘If I want to order you out, I could order you out and give you thirty days’ notice,’ which was the understanding between us.” However, in December of 1945 he again paid Eimple $600 in payment of rental through June 30, 1946.

Defendant’s testimony is to the effect that he went to his original landlord, Mr. Bohnett, and received his “OK” on the installations and it was understood that if the place should be sold defendant could move his “material out,” but Bohnett testified: “Well, there was some discussion about lease, and I did prepare a lease for one year, but it was never signed, and we went, just went on a month-to-month basis at the beginning. Q. Do you recall a conversation with Mr. Matich concerning the installation of the redwood tongue and grooving ? A. I recall a conversation, my memory is that it was over the telephone, I may be wrong, but I recall that Mr. Matich asked me if I had any objection to his building a steam room in that shed. I told him that I had no objection, and dismissed it from my mind. Now, whether there was more to the conversation or not, I can’t recall. There may very well have been, but my attitude, I know this, that if he had asked me, if he did ask me- Q. Well, I’ll object to what you would have done if he would have asked you, Mr. Bohnett. You don’t now recall any conversation whereby you told him he could remove that building and things when he moved ? A. No, I’ve told you all that I recall. Q. All that you recall? A. The reason, as I’ve stated, I paid little attention to what happened there, as long as I got enough rent to carry it.”

The only witness called by defendant was Mr. Eimple who testified that defendant was his tenant on a month-to-month

A consideration of the elements present in a leasehold for six months and of those found in a periodic tenancy is appropriate in determining the problem presented on this appeal. “Though not expressly mentioned in the Code, periodic tenancies are recognized by our cases as a form of tenancy at will. They are created by the parties to continue for successive periods of the same length, unless sooner terminated by notice at the end of one such period. Examples are tenancies from year to year and month to month. An original tenancy at will under an invalid lease, or a lease with an indefinite term, may be construed as a tenancy from year to year or month to month upon payment of rent at such periods.” (Witkin, Summary of California Law, vol. 1, 573.) Tiffany points out that this expression covers all tenancies “which are in their nature such as will endure for a certain period, and will continue for subsequent successive periods of the same length, unless terminated by due notice, at the end either of the first period or of one of the successive periods.” (1 Tiffany, Landlord and Tenant, p. 119.) The authorities agree that in the absence of express agreement, the reservation and payment of rent at stated periods is “the principal criterion to determine the duration of the successive terms of a periodic tenancy.” (Jones, Landlord and Tenant, § 215, p. 253.) Jones adds (p. 254) that “Where no time is mentioned, and no annual rent reserved in a letting, the character of the letting as to time will be controlled by the intervals between the rent payment; monthly or weekly payments implying monthly or weekly tenancies.”

The most important difference between a periodic tenancy and a tenancy for a fixed term—such as six months—is that the latter terminates at the end of such term, without any requirement of notice as in the former. (Ryland v. Applebaum, 70 Cal.App. 268 [ 233 P. 356 ]; Black v. Black, 77 Cal. App. 82 [ 246 P. 90 ].) In order to create an estate for a definite period, the duration must be capable of exact computation when it becomes possessory, otherwise no such estate

In the present appeal, when all of the evidence is considered, particularly defendant’s conversation with Himple, and the fact that six months’ rental had twice been paid in advance to cover the last year of the occupancy, a reasonable inference may be drawn that defendant held the premises by virtue of a six months’ oral lease, and that his right to possession terminated on June 30, 1946. This conclusion to be sound in law and in fact must be based upon the assumption that the additions and improvements to the property did not consist merely of trade fixtures, and that a notice was not necessary to terminate an oral lease. These points will be given further consideration.

The intention of the parties is controlling in determining whether an affixed article is to be considered as realty, or personalty which may be removed without injury to the premises. Section 1019, Civil Code, provides: “A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises.” In this case in addition to the evidence introduced the court viewed the premises. Under these circumstances the findings on the issue pertaining to fixtures may not be disturbed by an appellate court unless there was an agreement by the parties to the contrary. A tenant may agree with his landlord that the former may remove fixtures at any time. (12 Cal.Jur. 580.)

Defendant calls attention to his own testimony that there was an understanding reached with Bohnett that the improvements could be removed when he ceased to be in possession of the property. Mr. Bohnett testified that he had no independent recollection of the conversation. That testimony did not assist defendant. The court had a right to consider the-importance of such a question, and the fact that if such an agreement had been made with the original landlord he probably would have remembered it. The defendant as a witness must be judged upon the theory that the court weighed the probability of the making of such an agreement and that the manner in which defendant testified turned the scales against him on this question. (Code Civ. Proc., § 1847.)

Plaintiff successfully distinguishes the cases cited by defendant. Follette v. Pacific L. & P. Corp., 189 Cal. 193 [ 208 P. 295 , 23 A.L.R. 965 ], involves the claim of one asserting the right to an easement as against a subsequent purchaser. Hunter v. Watson, 12 Cal. 363 [ 73 Am.Dec. 543 ]; Pell v. McElroy, 36 Cal. 268 and J. R. Garrett Co. v. States, 3 Cal.2d 379 [ 44 P.2d 538 ], involve disputes between an “owner” in possession and a subsequent purchaser. Scheerer v. Cuddy, 85 Cal. 270 [ 24 P. 713 ] and Beverly Hills Nat. Bank v. Seres, 76 Cal.App.2d 255 [ 172 P.2d 894 ], involve the claim of a tenant as against a subsequent purchaser.

Both parties cite Oroville-Wyandotte Irr. Dist. v. Ford, 47 Cal.App.2d 531 [ 118 P.2d 340 ], holding that an agreement concerning fixtures is only binding on one having notice, but that such notice is provided by the recordation of the contract to convey in which the agreement was set forth. In the present case the lease was oral. Plaintiff also cites Nead v. Specimen Hill Min. Co., 52 Cal.App.2d 475 [ 126 P.2d 450 ], dealing with the effect of the knowledge of a purchaser of á mining claim regarding a conditional sales agreement under which the seller retained title to the mining machinery, and Trabue Pittman Corp. v. County of Los Angeles, 29 Cal.2d 385 [ 175 P.2d 512 ], wherein the court stated at page 397: “It is well settled, however, that such contract ... [as here discussed], is not effective against those not bound by the agreement; for example, innocent third persons.”

If the mere possession by a tenant of real property is notice to a purchaser that certain articles, as a shed or house attached to leased property so as to make one continuous structure, are in fact personal property without any further circumstances of a nature reasonably calculated to put the purchaser on notice of an agreement to that effect between the tenant and a former landlord, there would be no way to protect the purchaser. In the present case there was evidence that the attached and additional property had become an integral part of the premises as they existed when the first oral lease was made, and evidence from which a reasonable inference may be drawn that there was no agree

The vital question on this appeal is whether there is substantial evidence to support the findings. In his discussion of the evidence dealing with the nature of the lease, defendant overlooks the fact that, “Because of the presumptions in favor of the verdict and findings and judgment, the appellate court when reviewing the evidence in support of a verdict or finding, or, in the absence thereof, in support of the judgment, must take into consideration all the evidence rather than certain disconnected portions thereof. It must-accept as true all evidence tending to establish the correctness of the finding or verdict, and it must consider it in the most favorable aspect toward the prevailing party, and give to him the benefit of every inference that can reasonably be drawn in support of his claim. A mere doubt as to whether a finding is justified by the evidence will not authorize the appellate court to set aside the finding.” (2 Cal.Jur. 879-880; see, also, English v. Olympic Auditorium, Inc., 217 Cal. 631 [ 20 P.2d 946 , 87 A.L.R. 1281 ]; Kenney v. Los Feliz Investment Co., 2 Cal.2d 647 [ 43 P.2d 255 ]; Givens v. Johnson, 73 Cal.App.2d 139 [ 166 P.2d 67 ]; Peterson v. Peterson, 74 Cal.App.2d 312 [ 168 P.2d 474 ].)

The appeal from the order denying defendant’s motion for a new trial is not appealable and hence is dismissed. The judgment as appealed from is affirmed.

Peters, P. J., and Bray, J., concurred.