Ahlers v. Barrett

COOPER, J.

Appeal from judgment and order denying defendant’s motion for a new trial.

The complaint alleges that about September 1, 1902. Eleanor Sudden and others by verbal lease let to defendant the premises known and designated as 103 Eighth street, in the city and county of San Francisco, up to, but not including, the first day of May, 1903, at the monthly rent of $25 per month, payable monthly; that defendant entered under the lease, and ever since has continued to hold and occupy the premises; that defendant holds over and continues in possession without the permission of plaintiff and contrary to the terms of the lease; that plaintiff, on the thirtieth day of September, 1903, notified the defendant in “writing that the tenancy of said premises would expire November 1, 1903, but that defendant continued to hold possession notwithstanding demand in writing was made by, plaintiff for the possession of the same; that more than three days has elapsed since said demand, and defendant has ever since failed and neglected to deliver up to plaintiff the possession of the said premises; that the monthly rents and profits of the premises is the sum of $25. That about the first day of May, 1903, the said Eleanor Sudden and others leased the said premises to plaintiff by a written lease for the term of three years from date, under and by virtue of which plaintiff became and still is entitled to the possession of the said premises.

There is no allegation in the complaint that the defendant has ever failed to pay the rent.

Although it is alleged in the complaint that the verbal lease to defendant expired May 1, 1903, it is also alleged that the plaintiff notified defendant that her tenancy would expire November 1, 1903.

The defendant in her answer denies the material allegations of the complaint; denies that on the first day of May or at any other time the said Eleanor Sudden and others executed, or delivered to plaintiff any lease of said premises for a term of three years or for any term; denies that by virtue of any written lease the plaintiff is or ever has been entitled

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to the possession of the said premises; denies that the term for which the premises were leased to her has expired; and alleges affirmatively that she entered into possession of the premises under a written lease from said Eleanor Sudden and others, which lease is still in force and effect, and under which she is still entitled to the possession of the premises.