Stoltenberg v. Harveston

CURTIS, J.

Action for unlawful detainer by the landlord against tenants holding over after default in the payment of rent. ' The defense to the action was that the landlord orally reduced the rent from $675 per month to $300. This latter sum was paid monthly by the lessees from the date of the lease to and including April 1, 1932. As the rent was payable in advance, the payment on April 1, 1932, covered the whole month of April. On May 7th following, the landlord served notice on the tenants that the rent of "said premises for the month of May, 1932, amounting to $675, due May 1, 1932, under the terms of the lease had not been paid, and that the tenants were required to pay the same within three days after service of notice or deliver up possession of the premises. A trial was had, and judgment was rendered for the plaintiff for possession of the premises. Defendants have appealed on the judgment-roll.

The principal points made on appeal are: (1) That the

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written lease fixing the monthly rental at $675 was altered and modified by an oral agreement to accept $300 per month as rent of said premises and the actual acceptance of said sum, and (2) no cause of action was stated in the complaint as the allegations of the complaint show that the notice to pay rent or surrender possession of the premises was prematurely given.

Taking these points up in the order of their statement, it is apparent that the first question presented is whether the written lease to pay a monthly rent of $675 per month may be modified by an oral agreement to accept the sum of $300 per month. By section 1698 of the Civil Code it is provided that, “A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise.” In so far as the payments of rent made under the oral agreement of the parties are concerned, there can be no question that as to those payments actually made and accepted as rent- in full for the period covered by them, the oral agreement reducing the rent was executed and no claim for the recovery of rent during the period covered by said payments can be maintained.

(Julian

v.

Gold,