Kaye v. M'Divani

California Court of Appeal Apr 12, 1935 No. Civ. 9055Published

Before: Roth

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Holding. The court held that the lease agreement enlarged the lessee's liability to that of an insurer for the leased property, and that the action was not prematurely brought because the cause of action accrued upon the expiration of the original written lease.

Issues

Whether the action for the value of the stolen rug was prematurely brought.
Whether the lease agreement enlarged the lessee's liability beyond that of an ordinary bailee.
Whether the trial court erred in its findings regarding damages and the defense of estoppel.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The cause of action undoubtedly accrued upon the expiration of the written lease.”

“It has already been decided in a number of eases that language, similar in phraseology, context and import to that used in the excerpted portions of the lease in question, enlarges the liability of a bailee and in effect makes him the insurer”

ROTH, J.,

pro tem.

Respondent leased in writing to appellant a furnished residence for the term from March 9 to September 9, 1931, at a rental of $400 per month. Upon the expiration of the term of the lease appellant held over by mutual oral agreement to October 9, 1931, at which time the premises were vacated. Attached to the lease was an inventory which listed the furniture, furnishings and equipment of the residence and fixed the valuation of the several items thereof. Among the items listed in the inventory was one Shah Habbas blue (antique) rug, 10.1x14.4, “very rare”, valued at $6,000. This rug was stolen on April 15, 1931, and this action was instituted for its value on October 7, 1931. The lease provided, among other things, “ . . . and lastly, that at the expiration of the term of this lease or agreement, or other sooner determination thereof, he will peaceably and quietly surrender, yield and deliver up the entire possession of said House, Furniture, Goods and Chattels, unto the said party of the first part ... in an good state and condition as the same are now in, ordinary wear and tear and damage by fire alone excepted . . . ” Further, “Party of the second part assumes all liability to the furniture and interior decorations in accordance with the inventory hereto attached, which is a part of this contract. ’ ’

Respondent had judgment for $6,000 and costs. Appellant prosecutes this appeal from that judgment and contends that this action was prematurely brought; that the damages allowed were excessive; that there was no liability upon appellant except for negligence and that no negligence

[134]

was shown, and that respondent was estopped from claiming any damage.

We will treat the points urged in the order in which they have been stated. By reason of the holding over by appellant, repossession of the premises was not actually delivered until October 9, 1931, and the action was filed October 7, 1931. It may be conceded that if the period for the performance of the contract is fixed, the right of action accrues and the statute begins to run at the expiration of that period and not before.

(Fratt

Kaye v. M'Divani

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ROTH, J.,

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