Walter v. Arnold

WOOD, P. J.,

pro

tem.

This is an action in unlawful detainer to recover possession of the ground floor of a four-story building on Van Ness Avenue, in San Francisco. There was a directed verdict for possession of the premises, but the court submitted the question of damages to the jury. The defendant appeals from that portion of the judgment that awards such possession to plaintiff.

The lease under which appellant Arnold entered into possession contained the following reservation: “It is understood and agreed that the lessor reserves the right to lease or sell the entire building in which the leased premises are located, and in the event such a sale or leasé of the entire building is made the lessee shall vacate and surrender the premises as soon as he conveniently can, but in any event within sixty (60) days after notice of such sale or lease.”

During the occupation of the premises by appellant, and prior to April 29, 1919, the respondent agreed to lease the land with a new concrete building to be erected thereon in place of the old one, to the Peacock Motor Sales Company for a period of ten years from the completion of the building, which was to be constructed without delay and completed before January 1st, following.

On April 21st the old building was sold to a wrecking firm. There is a dispute as to the date that the appellant was given notice of this sale, but on April 29th he received a written notice that the premises had been

leased;

that such notice was given in compliance with the written lease between her and Arnold, and that he was required to vacate within sixty days after receipt of the notice. This action was commenced after July 2d.

[459]

It appears that the upper floors of the old building were reached only by a stairway leading from the ground floor and through the main entrance, and that this made it difficult to obtain a tenant or tenants for the other floors. The lease in this case was made for a period of but one year at a monthly rental, payable monthly, of the sum of $200 per month and one per cent of the gross sales in excess of $10,000 per month. No option of any kind was given to the lessee for a renewal, or to save Ms tenancy from forfeiture in ease of a sale or lease, but if he was required to surrender possession on account of such sale or lease, respondent was to pay Mm the sum of $250 per month for the remaining months of Ms unexpired term.