Johnson v. Sanches

[116]

DOOLING, J. pro tem.

Appellant was the lessee and respondent the lessor of certain dairy and farming lands. On or about April 14, 1941, respondent served a three-day notice to pay rent or surrender possession upon appellant. The amount of rent demanded in this notice was $1,551.38.

Under the terms of the lease the property leased was segregated into two parcels, one of 100 acres and the other of 38 acres. The lease provided for a monthly rental of $208.34 for the 100 acre parcel, and an annual rental of $950 for the 38 acre parcel.

Upon the failure of appellant to pay the rent so demanded this action in unlawful detainer was commenced and respondent had judgment from which this appeal is taken. Included in the demand for $1,551.38 rent, was $750 claimed to be due upon the 38 acre parcel. As to this the trial court found: “that the demand in said notice for payment of rent was excessive in the sum of $750.00, as the Court finds that $750.00 of the amount demanded by plaintiff was not owing by defendant to plaintiff either as rent on the thirty-eight (38) acres or the one hundred (100) acres mentioned in the pleadings, ’ ’ and further found that by an oral executed agreement between the parties the 38-acre parcel had been withdrawn from the lease and the agreement to pay rent for that parcel cancelled.

The written demand for rent was not segregated in any way, the demand simply reciting that there is due as rental the sum of $1,551.38, and demanding the payment of that sum within three days or the surrender of the premises.

Code of Civil Procedure, section 1161 provides as follows:

“A tenant of real property for a term less than life is guilty of unlawful detainer: . . .

“2. When he continues in possession, in person or by subtenant, without the permission of his landlord . . . after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days’ notice, in writing, requiring its payment,

stating the amount which is due,

or possession of the property, shall have been served upon him. ...” (Italics ours.)