Wagner v. Havard

KOFORD, P. J.

This is an appeal from a judgment in favor of plaintiff in an action of unlawful detainer. The points raised by appellant relate to the giving of the statutory notices.

The defendant occupied the premises under the terms of a written lease for a term of years. The lease contained a clause providing that if the lessee violated any of its covenants the lessor might by notice in writing declare the lease forfeited and in that event the holding thereafter should be construed to be a tenancy from month to month only and for the same monthly rental as stated in the lease. The lessors, on account of certain claimed specified breaches of covenants, on May 27, 1926, served written notice upon defendant declaring the said lease forfeited, “said forfeiture to take effect June 1, 1926, on and after which date your further holding of such premises will be a tenancy from month to month only. ...” This was the only notice served on defendant. The action was thereafter commenced on July 12, 1926. '

The complaint alleged: “That on the 1st day of June, 1926, defendant was in possession of the premises at 2791 Sixteenth street, San Francisco, California, under a month to month tenancy from plaintiff as landlord;

‘ ‘ That on the 27th day of May, 1926, plaintiff served notice on defendant that the said month to month tenancy would be terminated to take effect June 30, 1926.”

The answer denied holding under a month to month tenancy, denied any termination of such tenancy, set up the lease and alleged faithful performance by defendant.

The court found that the lease had been violated by defendant and gave plaintiff judgment in unlawful detainer and $500 damages.

[312]

Appellant claims that the thirty-day notice of termination of the month to month tenancy commencing June 1st, was prematurely given because it was given May 27th, several days before the month to month tenancy began, as was said in

Stoppelkamp

v.

Mangeot,

42 Cal. 316. He furthermore claims that before this special proceeding of unlawful detainer could be commenced it was necessary for plaintiff to follow the thirty-day notice of termination with a three-day notice of re-entry under Civil Code, section 791, citing