McComish v. Kaufman

ELLISON, P. J.,

pro

tem.

Plaintiff brought this action to recover possession of 235 opera-chairs, a lot of scenery, stage

[508]

fixtures, and an electric sign. Prom a judgment in favor of defendant the plaintiff appeals.

On the twelfth day of March, 1912, the plaintiff gave to the defendant a lease of a room in a building in the town of Colusa, known as the “Herald Building,” to be used for the purpose of moving-picture entertainments. At the time the lease was executed, the defendant was in possession of the premises and had been for some time under prior contract with plaintiff. The lease was for a term ending December 31, 1913, with the option to the defendant of a two years’ extension. The rental was thirty-five dollars per month. At the date of the lease there was certain personal property in the room consisting of chairs, scenery, and other articles used in the moving-picture business, which concededly belonged to the defendant. The lease stated that this furniture and fixtures were pledged to the plaintiff for the faithful performance of the conditions of the lease. Defendant exercised his option and held under this lease until December 31st, 1915. Thereafter he held the premises and conducted the moving-picture business in said room as a tenant at will or from month to month without any written lease until August 5, 1918, at which time plaintiff served upon him a written notice to vacate within thirty days.

Upon receiving said notice, defendant had an interview with plaintiff and informed him that thirty days was too short a time within which to move his fixtures and furniture and asked for a new lease for a longer term than thirty days, and stipulated that if such additional time were given, he would pay an increased rental, and remove all his property, including the property here involved, before the expiration of such new lease. As a result of this interview the plaintiff gave to the defendant a new lease of the premises. This lease was dated August 12, 1918. The property leased was described as “that room known as the ‘Gem Theater’ located in the Herald Building, in the town of Colusa. ’ ’ The term was for one month beginning the first day of September, 1918, and ending the thirtieth day of September, 1918. The rental for the month was sixty dollars. No mention was made in the lease of the fixtures or furniture. Within the life of the new lease the defendant removed from the building all the property, the subject of this litigation.