Roberts v. Redlich

WOOD (Fred B.), J.

Defendant appeals from a judgment for $5,250 damages caused plaintiff by defendant’s holding over after termination of his lease of certain improved real property of the plaintiff.

The sole question is the asserted bar of the award of damages to plaintiff by the judgment rendered in an unlawful detainer action brought by plaintiff against this defendant for restitution of this property upon termination of the lease. We conclude that the award of damages in the former action is not a bar to the present action and that the judgment herein should be affirmed.

On April 6, 1948, defendant was a tenant of plaintiff on a month-to-month basis under an oral lease of the property, at a rental of $600 payable monthly in advance. On that day plaintiff gave defendant a 30-day notice of termination of the lease. May 18, 1948, plaintiff filed the unlawful detainer ae

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tion, alleging damages in the amount of $16,000.

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Defendant filed his answer June 10. The case was tried June 21. Findings of fact and conclusions of law were filed June 2. The court found that defendant had failed and refused to surrender the premises following termination of the lease on May 6, 1948; that plaintiff had executed a lease with a tenant other than defendant at a rental of $750 a month; and that “plaintiff has been damaged in the sum of $270 by reason of defendant’s failure and refusal to vacate said premises.” Judgment was rendered July 27, 1948, awarding plaintiff restitution of the premises and damages in the sum of $270. That judgment became final prior to the trial of the present action.

Plaintiff commenced the present action November 12, 1948. He alleged and the court found: March 10, 1948, plaintiff executed a lease of the premises to another tenant for seven years at $750 a month for the first four years, with a right in the tenant to cancel the lease if plaintiff could not deliver possession by June 15,

1948;

defendant, with knowledge of said lease and its caneelability, wilfully continued in possession until June 30, 1948; the new tenant cancelled the lease; the premises were vacant July through September, 1948; plaintiff again leased them October 1, 1948, for five years, at $600 a month during the first two years and $750 a month during the last three years; with a resultant loss to plaintiff of $750 a month for three months and $150 a month for 24 .months, a total of $5,850, caused by defendant’s unlawful detainer of the premises; against which defendant had a valid counterclaim of $600.