Zumwalt v. Hargrave

California Court of Appeal Oct 30, 1945 No. Civ. 14812Published

Before: York

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Holding. The court held that the lessors validly terminated the lease upon a bona fide sale of the property and that the complaint sufficiently stated a cause of action for recovery of possession, as the lessors properly tendered the required payments into court.

Issues

Whether the complaint stated a cause of action for recovery of possession of the premises.
Whether the lease termination notice was defective because it was signed by the lessors' attorney rather than the lessors themselves.
Whether the judgment failed to dispose of the entire controversy or do equity between the parties.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It conclusively appears that sufficient facts were pleaded by respondents to entitle them to the judgment rendered herein, i. e., recovery of possession of the property and cancellation of the lease.”

“By virtue of his employment by respondents, their attorney had the general implied authority to execute the notice of termination of the lease in their behalf.”

YORK, P. J.

On June 4, 1941, respondents, as lessors, and appellant, as lessee, entered into a. lease covering the Wade Apartments located at Long Beach, California, for a period of seven years at a stated rental per month. Said lease provided, among other things, the following:

“The landlord hereby reserves the right to terminate this lease and the terms thereof, in case of a bona fide sale of said property, upon giving ninety (90) days’ notice in writing to the tenant, mailed to the tenant at the demised premises, of their intentions so to terminate the same; and this lease and the terms hereof, shall cease, determine and end at the expiration of ninety (90) days from the day when such notice shall have been mailed, and thereafter, the Lessors may take possession of the demised premises and every part thereof, either by force or otherwise, without being liable to prosecution or damages therefor, and enjoy the said premises as of their former estate, free, clear and discharged of this lease, and of all the rights of the tenant hereunder, but that in the event of such cancellation of this lease, in the manner hereinbefore provided, the Lessors shall pay to the Lessee, the sum of Fifteen Hundred Dollars ($1500.00) for any furniture purchased by the Lessee herein, in this transaction, a bonus of Five Hundred Dollars ($500.00), and such portion of Seven Hundred Fifty Dollars ($750.00) as the balance of said lease bears to the said Seven Hundred Fifty Dollars (750.00), as consideration for the surrender of said premises.”

[417]

On June 20, 1943, the property was sold, whereupon respondents on June 21, 1943, mailed notice of termination of the lease to appellant, which contained an offer to pay “the sum of $1500.00 for any furniture purchased by you in the transaction of June 4, 1941, also a bonus of $500.00 and also such proportion of the sum of $750.00 as the balance of said lease bears to the said sum of $750.00, which said sums of money will be paid immediately upon your vacating said premises as consideration for the surrender thereof.”

Appellant refused to vacate the premises, whereupon respondents brought the instant action to recover possession thereof. The trial court found in favor of respondent lessors and entered judgment for recovery of possession of the property and for cancellation of the lease.

Zumwalt v. Hargrave

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YORK, P. J.

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