Melone Co. v. Acquistapace

California Court of Appeal Jun 10, 1925 No. Docket No. 2769.Published

Before: Finch

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Holding. The court held that the evidence supported the finding that the lease was not surrendered or canceled by mutual agreement, as the landlord did not accept the tenants' abandonment of the premises.

Issues

Whether the evidence supported the trial court's finding that the lease terms were as alleged by the plaintiff.
Whether the landlord's actions constituted a surrender of the lease by operation of law or mutual consent.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It cannot be said, as a matter of law from the foregoing evidence, either that the plaintiff consented to the surrender of the premises or that it is estopped from disputing the alleged surrender.”

“Merely attempting to secure a new tenant, without taking possession or in fact reletting, is not an acceptance of the surrender.”

[200]

FINCH, P. J.

Plaintiff leased certain lands to defendants for a term of five years commencing on the first day of December, 1921, at a “rental for first two years of $2,-000 per year and rental for the three years following $2,-500 per year, payable semi-annually, every six months, in advance. ’ ’ Defendants went into possession under the lease and paid the first two installments of rent. They vacated the premises in August or September, 1922. This action was commenced for recovery of the third installment of rent. The plaintiff was given judgment and the defendants have appealed.

The complaint alleges the terms of the lease and is in the usual form of an action for the recovery of rent. The answer sets up a lease containing terms essentially different from those alleged in the complaint. The court found, from conflicting evidence, that the terms of the lease were as alleged in the complaint. Appellants do not contend that the evidence is insufficient to support this finding.

By the terms of the lease appellants wore to plant twelve acres of the land to alfalfa and respondent was to furnish water for the irrigation thereof “at $5 an acre each irrigation.” Appellants planted the alfalfa and commenced to irrigate the same. Respondent refused to permit them to continue the irrigation on the ground that “it was wrong to do it” before the seed was sprouted, “and at that time over half of the seed had not sprouted.” Respondent notified them not to use the fruit upon a few trees growing in the alfalfa field. Appellants contend that respondent’s foregoing acts gave appellants “the right to abandon the property when they were not receiving that which the lease gave them the right to receive.” The lease provided: “Tenant to upkeep premises and run same to full satisfaction of owners.” If it be conceded that the foregoing acts of respondent constituted a breach of the terms of the lease, neither such breach, nor any breach, was alleged in the answer, the defense set up therein being that the lease was canceled by mutual agreement.

In appellants’ brief it is said: “The appellants’ position is this, that there was a surrender and a cancellation of the lease between the respondent and appellants and that the respondent on the 22nd day of September,

Melone Co. v. Acquistapace

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FINCH, P. J.

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