Feigenbaum v. Aymard

TYLER, P. J.—

Action in unlawful detainer.

The plaintiffs are the owners of certain premises known as the Hotel Lafayette, situated in San Francisco, and defendant entered into possession of. the hotel as a tenant under a written lease. This instrument provided for a three-year period commencing on the first day of November, 1919, and ending on the thirty-first day of October, 1922, at a monthly rental of $650. It also contained a clause to the effect that in the event the lessee should hold over beyond the term provided for, -such holding over would" be a month-to-month tenancy at a rental of $650, payable monthly in advance. At the expiration of the written lease defendant held over. On November 29, 1922, he was served' with a written notice, informing him that the terms of his then month-to-month» tenancy would be changed on and as of January 1, 1923, in respect of the amount of rent, which would be increased from $650 to $800 per month. Prior to the date named the parties met, and it is plaintiffs’ claim that it was finally agreed that the rental should be the sum of $700 under a month-to-month tenancy, and that under this arrangement

[715]

defendant paid the $700 for the months of January and February, 1923. On January 29th plaintiffs served on defendant a written notice, terminating this tenancy, and which took effect February 28, 1923. Defendant refused to vacate and this action in unlawful detainer was thereupon commenced.

Defendant in his answer denied the alleged tenancy from month to month and claimed that the agreement by which the rent was increased to the sum of $700 contemplated a new lease for a period of three years, to be secured by a chattel mortgage similar in effect to that which secured the terms of the written lease under which defendant originally entered in 1919. In this connection the answer alleged that plaintiffs drafted the lease agreed upon, which was fully executed by the parties. It is then charged that plaintiffs presented for execution a chattel mortgage entirely different from the one agreed upon, for which reason defendant refused to.sign the same. By way of further defense he alleged that possession was held by him under an executed parol agreement, the terms of which had been fully performed.

Prior to the institution of this action defendant had filed a suit in specific performance. By stipulation that action was consolidated with the instant one.