Vavuris v. Pinelli

AGEE, J. pro tem.

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Plaintiff brought this action for damages for breach of an alleged oral agreement by defendants to execute a five-year written lease. The trial court found upon conflicting evidence that defendants did not make any such agreement. Plaintiff makes no contention that this finding is not supported by substantial evidence. Defendants also raise the statute of frauds. (Civ. Code, § 1624, subd. 4; Code Civ. Proc., § 1973, subd. 4.) The trial court held that this was likewise a good defense.

Judgment was rendered for plaintiff in the sum of $185, that being the amount of rent owing by defendants for the last month of their month-to-month tenancy of the premises in question. Plaintiff has appealed from this judgment.

Plaintiff and his brother held the master lease on premises located at 714 and 710 Folsom Street, in the city and county of San Francisco. This lease expired by its terms on January 14, 1952. On May 17, 1948, they executed, as sublessors, a written sublease of 714 Folsom Street. This sublease expired by its terms on December 31, 1951, and provided for a rental of $125 per month. The sublessees operated a tavern on the premises. In November, 1950, they sold out to defendants, Raymond A. Pinelli and Louis Sanchez, and assigned the sublease to them. Plaintiff is an attorney at law and he handled all of the details of the sale and acted as escrow holder. He retained the sublease in his files and defendants did not have a copy.

In October, 1951, plaintiff obtained a new master lease of 714 and 710 for the term commencing January 15, 1952, and'ending January 14, 1957, at a rental of $95 per month. Prior to this, there had been a general discussion between plaintiff and defendants about a new sublease of 714 for the period commencing January 1, 1952. Plaintiff told them that as soon as he had contacted the owners about a new master lease he would talk to them further. He did tell them, however, that there would be a “slight increase” in their rent. In December, 1951, plaintiff told defendant Pinelli

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that the defendants could have a new lease and that the rent would be increased to $200 per month. Pinelli told plaintiff that they would not pay that much rent. Plaintiff called back later and told Pinelli that they could have the place for $185 per month. Pinelli agreed to this and asked plaintiff to prepare a new lease. Plaintiff suggested that the new lease contain all of the other terms of the existing lease. Pinelli told plaintiff that he had never read or seen that lease and would not agree to a new lease until he had seen its proposed terms. Pinelli asked plaintiff to draft a new lease and bring it to the tavern so that all of the parties could look it over at the same time. Plantiff never presented a new lease to defendants. He testified that on January 2, 1952, he prepared and signed an “Extension of Lease” but he admitted that he did not at any time show this to defendants and they did not sign it. This extension instrument adopted the old lease by reference except as to the new period and the increased rental. Defendants paid the increased rental, commencing January 1, 1952. Defendant Sanchez called at plaintiff’s office on several occasions and asked to see the proposed lease but he was always told that it had been misplaced. As late as April, 1953, defendant Sanchez called at plaintiff’s office, paid the rent, and asked to see the proposed new lease and again plaintiff said he could not find it but that defendants were not to worry about it. About this time defendants became discouraged by their failure to obtain a new lease, the roof was leaking badly, and cars in the parking lot adjacent to the tavern were bumping into the side of the building and knocking liquor bottles off the shelves. In May, 1953, defendants gave plaintiff 30 days’ written notice of termination of tenancy, sold their liquor license and closed up.