Hamer v. Ellis

HAVEN, J.

Defendant’s demurrer to plaintiff’s second amended complaint was sustained without leave to amend; whereupon judgment was entered for defendant, from which plaintiff appeals. Plaintiff was lessee, and defendant lessor, under a written lease of certain premises in the city of TJkiah. The second amended complaint contains two counts: The first, for damages alleged to have been suffered by plaintiff by reason of his wrongful eviction by defendant from the leased premises; and the second, for damages alleged to have been suffered by plaintiff by reason of the breach by defendant of a covenant of the lease to repair the buildings therein referred to. In the first count the leased premises are'described as follows: “That certain property known as the Ellis Stable Property, situated on the east side of Main Street between Perkins Street and Stephenson Street, in the Town of Tlkiah City, Mendocino County, State of California, and including the stable building and all sheds attached thereto, together with the corralls, scales and all other property belonging to or. forming a part of said premises, excepting what is known as the ‘Back Shed’ on the northeast portion of said premises, being 15 feet on Perkins Street and running back 25 feet. ’ ’

In the second count the same description is given, but the following allegation is added: “And plaintiff here alleges that said premises consisted of one corrall, 150 feet long by 90 feet wide; one bam 150 feet long by 60 feet wide; one shed 40 feet long by 24 feet wide; scales 30 feet long by 10 feet wide, all of which were built upon the ground and the ground constituted the only floor of each thereof; and an alleyway 24 feet long by 16 feet wide.”

The allegations of the first cause of action are substantially the following: A lease of the above-described premises was executed by defendant to plaintiff on October 5, 1914, for a term of five years, at a monthly rental of thirty dollars; it was understood and agreed between the parties to said lease that said premises were to be used as a livery and feed stable, storage sheds, stock corrals, and weighing depot; plaintiff entered into possession of said premises on October. 5, 1914, and engaged in the business above referred to; said lease continued

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in effect until July 5, 1917, upon which, date defendant notified plaintiff that the said lease was of no further force or effect, and that said plaintiff had no further right on said premises, and would no longer be allowed possession thereof, nor to go on said property; plaintiff notified defendant on said date that he was ready, willing, and able to perform his part of said contract, and tendered the defendant the rent for the month ending on August 5, 1917, which was refused by defendant ; on August 5,1917, defendant took possession of said premises, and thereafter erected a building on a part thereof and let the same to another tenant and also repaired the scales thereon, and has since operated them at a profit; as a result of said eviction plaintiff has not entered on said premises since July 5, 1917. Then follow allegations as .to the amount of profits which plaintiff had derived from the use of the premises prior to June 18, 1917, “when said premises were damaged by fire,” and as to the amount of profits which would have been derived therefrom during the remainder of the term of the lease. The concluding allegation of the first count is: “And, therefore, because of this eviction as hereinabove set forth, plaintiff has been damaged to the extent of $2,700. ’ ’