Rognier v. Harnett

KNIGHT, J.

The defendant, Allen F. Harnett, for about four years prior to September 30, 1936, was the tenant of a dwelling owned by plaintiff, and on that date the tenancy was extended by the execution of a lease for two years at a monthly rental of $110, which provided also for the payment of attorney’s fees in case action was brought for a breach of the lease. Defendant continued in possession of the premises until November 17, 1937, when he moved therefrom. The rent was paid to December 1, 1937; and upon the expiration of the full term of the lease, in September, 1938, plaintiff brought the present action, which was tried on an amended complaint containing two counts, the first being for the rent from and after December 1, 1937, amounting to $1100, the second for damages in the sum of $1100 for the alleged abandonment of the premises, and in each count plaintiff asked for the additional sum of $250 as attorney’s fees.

The defense interposed by defendant was based upon the claim that he vacated the premises with plaintiff’s express consent and permission after plaintiff had agreed to a cancellation of the lease, and that upon the surrender of the premises plaintiff accepted the same and thereafter, for the

[572]

remainder of the term fixed by the lease, retained absolute possession and control thereof. The trial court found in favor of defendant and entered judgment accordingly, from which plaintiff prosecutes this appeal, his principal contention being that the evidence is insufficient to support the trial court’s finding upon the issue of the cancellation of the lease. There is no merit in the contention.

Whether in any given ease there has been a surrender of leased premises by a lessee and an unqualified acceptance of possession by the lessor are primarily questions of fact to be determined by the trial court from the whole transaction.

(Steel

v.

Thompson,

59 Cal. App. 191 [210 Pac. 430] ;

Triest & Co.

v.