Maynes v. Angeles Mesa Land Co.

THE COURT.

This is an appeal by plaintiffs from a judgment for defendant in an action for declaratory relief and damages. A motion by defendant to dismiss the appeal was filed, and the cause thereafter placed on the ready for submission docket.

The lower court sustained a general and special demurrer to the first amended complaint, without leave to amend. On this appeal, the question is whether the complaint states a cause of action.

In substance, the complaint alleges that defendant owned real estate, and submitted a written proposal to plaintiffs to lease the same for three years, commencing November 1, 1934, the rental to be 25 per cent of the gross receipts of plaintiffs’ undertaking business; that plaintiffs executed and delivered the proposed lease to defendant, took possession and made payments thereunder until about November 21, 1935; that at this time defendant notified plaintiffs that defendant had never executed the lease and did not consider the same binding; that thereafter defendant served a 30-day notice to terminate plaintiffs’ tenancy; that plaintiffs thereafter elected to treat this notice as a repudiation of the lease and are now willing to vacate but are unable to determine whether they were tenants under the lease or from month to month; that they have paid more than actually required to pay -as rental; and that they are entitled to cancellation of the lease and an accounting. In another cause of action incorporating many of these prior allegations, they attempt

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to plead' a cause of action for fraud, based upon the theory that defendant represented that it would lease the property and failed to do so.

It appears from the complaint that, subsequent to defendant’s notice plaintiffs remained in undisturbed possession, and were still in the premises at. the commencement of this action in April, 1936. In June, 1936, defendant brought an unlawful detainer action against plaintiffs and on stipulation secured judgment for possession, without damages or costs; and' thereafter the premises were sold to a third person.

With the tenancy thus terminated by the prior judgment, there is no basis for a declaration of rights in the proposed lease; and since plaintiffs admittedly remained in undisturbed possession during the unlawful detainer suit, there is no showing of damage by reason of any alleged repudiation of the lease prior thereto. The only theory of recovery which requires consideration is that of fraud in failing to sign the lease.