Levy v. Henderson

BURNETT, J.

The action was for rent and for restitution of premises.

The court found that on or about the twenty-eighth day of September, 1913, the plaintiff leased to defendant the ground floor of certain premises in Stockton known as the Aurora Flour Mills, from month to month, at the rental of fifteen dollars per month, and that said lease was not in writing; “that by virtue of said lease the defendant went into the possession of said floor space of said premises, and continued to occupy and hold the same as the tenant of the plaintiff until the month of July, 1914, at which time, by the mutual consent and agreement of the plaintiff and defendant, the plaintiff leased and demised to the defendant and the defendant leased from the plaintiff, the annex to the Aurora Flour Mills, which annex is a building annexed to and forming a part of the Aurora Flour Milla upon the same rental, to wit: $15.00 per month . . . and that the said defendant ever since the said month of July,

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1914, and up to the present time has been, and he is now, in the exclusive possession and occupancy of said annex” as tenant of said plaintiff and “under said agreement.”

Then follows a finding that no part of said rent has been paid and that the amount owing is $405, and that on or about April 25, 1916, plaintiff served upon defendant a written notice that he pay said rent or surrender said premises, but that defendant refused to do either, and that he “still withholds from the plaintiff the possession of said premises and still refuses and neglects to pay the plaintiff said rent or any part thereof as well as the accruing rent.”

Judgment followed for plaintiff in acco: lance with the prayer of his complaint.

There is no merit in the contention that the evidence is insufficient to support the finding as to the execution of the lease. Mr. Levy testified: “Mr. Henderson asked me, telling me that he had to leave his place, if I want to rent him the Aurora Flouring Mill; I say I have no objection, but I will rent to him on one proviso, that I don’t take any risk regarding fire, theft, destruction, and so on, but he to vacate as soon as I got a permanent tenant or sell the property; and he was satisfied. He said, ‘All right.’ Then he asked me what I would charge him; I told him I will charge him fifteen dollars per month. I called my man, Mr. Terry, and introduced him to Mr. Henderson. Mr. Terry had the keys, and he gave one of the keys to Mr. Henderson, the key for the front door of the Aurora Flour Mills.”