Buhman v. Nickels & Brown Bros.

BUBNETT, J.

The action is unlawful detainer for the recovery of certain premises in the county of Napa and damages for the detention thereof.

Before trial defendant surrendered to plaintiffs the possession of said premisés, thereby leaving for determination as the sole issue to be tried the question of damages for the

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use and occupation of said land from March 7, 1903, to and including August 31, 1903, the latter being the date of said surrender.

From the complaint the following facts appear: On December 15, 1900, one Charles Robinson died testate in the county of Napa; his will was admitted to probate and D. S. Kyser and E. W. Hottel were appointed executors thereof. On September 2, 1902, by an instrument in writing, said fexecutors leased to defendant certain premises in said county known as the Robinson ranch for the term of one year, with the following proviso: “It is further mutually understood and agreed by the parties hereto, that in case of a sale of the demised premises the second party will quit and surrender the said premises upon thirty days’ notice and the said first party will pay to the second party the actual cost or expense said second party may have been put to in putting any crop of hay or grain upon said premises.” On the fifteenth day of October, 1902, pursuant to the terms of the will, the executors sold the property to plaintiffs and upon the return of said sale and after notice given the sale was confirmed by order of the superior court, December 30, 1902. In pursuance of said order the executors made and delivered a deed to plaintiffs on January 19, 1903. On February 4th following plaintiffs served upon defendant a written notice as provided in the lease, demanding the possession of said premises ; on the 12th of February a demand was made upon defendant to furnish plaintiffs with a statement of the actual cost that defendant had incurred in putting in any crop on said premises; defendant refused to deliver possession and declined to furnish any statement of the said expense incurred by it; on March 6th plaintiff offered in writing to pay defendant the sum of $4 per acre for every acre that defendant had put to grain, said amount being sufficient to cover the entire cost; “that said defendant unlawfully holds over and continues in possession of said premises after demand made, and after the expiration of the time specified and provided in said written lease”; the monthly value of the rents and profits is $500 per month.