Brill v. Carsley

ALLEN, J.

Action for unlawful detainer. Judgment for the plaintiff upon the pleadings, from which defendant appeals.

It appears from the complaint that on May 1, 1902, plaintiff leased to defendant the described premises, as a'private hotel, for one year, at a monthly rental of $100; that during the tenancy extensive improvements thereon were made, with defendant’s approval, the effect of which was to add twenty-seven rooms to the building, which improvements were completed December 1, 1902. Defendant, after December 1, 1902, paid to plaintiff a monthly rental of $300, and continued so to do until July 1, 1903; that after the payment of the June rental plaintiff served upon the defendant a written notice to quit and deliver up possession of the premises on August 1, 1903, and thereafter, on August 4, 1903, served a three-days’ notice to quit, or, in default, that legal proceedings would be commenced to recover possession, with treble rent as damages. Defendant answered, denying that the improvements were made with her consent; and alleging that on September 9, 1902, plaintiff executed to defendant the following instrument:

“This is to certify that Mrs. Nona Carsley can have the premises at 647 S. Grand ave., at a monthly rental $200.00 as long as she likes. WM. BRILL.

“This lease is not assignable or transferable.”

And under this agreement defendant averred that she was holding. With the pleadings in this state, on motion duly made, the trial court rendered a judgment for plaintiff upon

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the pleadings for restitution and treble rent for the months of August, September, and half of October, at the rate of $200 per month—in the aggregate as trebled, $1,500.

We are of opinion that the rendition of this judgment upon the pleadings was error. Under section 1943 of the Civil Code, a hiring of real property of the character here described is presumed to be for one year from its commencement, unless otherwise expressed in the hiring. Section 1945 of the Civil Code provides: “If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year.” The admitted situation of the parties in September, 1902, was this: The plaintiff was making large expenditures upon the property, increasing the rental value threefold. Under the written lease he could have recovered of defendant only $100 per month for the balance of the term.