Dodd v. Pasch

HALL, J.

Appeal from judgment and order denying defendants’ motion for a new trial.

Plaintiff brought this action to recover the possession of certain premises rented of plaintiff by defendants. The complaint was framed upon the theory that the defendants were tenants from month to month and were holding over after one month’s notice terminating their tenancy. Defendants pleaded that they leased the premises for one year ending October 1, 1906, and at the trial introduced in evidence in support thereof a writing signed and delivered to defendants by plaintiff in the words following, to wit:

“Fresno, Cal., Sep. 25, 1905.

“Received of Pasch Bros. Twenty and no/100 dollars on a/c of old Schien store at a monthly rental from Oct. 1, of $125.00 per month for first 6 months, i. e. to April 1st; of $75.00 per month for the remainder of the year closing Oct 1, 1906. $105 (one hundred and five) due and payable.

“$20 no/100. FRED DODD.”

[688]

Defendants went into possession October 1, 1905, and paid all rent up to March 1, 1906, at which time they tendered the rent for March, which was refused by plaintiff, he having on February 28th given defendants a notice to surrender possession March 1, 1906.

The trial court, over the objection and exception of defendants, permitted the plaintiff to give testimony of an oral agreement to the effect that he leased the premises sued for, known as the old Sehien store, to defendants from month to month, although he admitted that he executed and delivered to defendants the writing above set forth, and that the money specified had been paid.

The court made findings in accord with the theory of plaintiff, and gave judgment accordingly.

Defendants contend that the writing above set forth constituted a written contract of lease for the term of one year ending October 1, 1906, and that no evidence of any oral agreement contrary to the terms thereof was admissible.

Of the correctness of this contention we have no doubt. The instrument clearly shows the contracting parties, the premises leased, the rent and the term, which is clearly one year, ending October 1, 1906. These are all the essential requisites of a lease that need be specified in the contract of lease. Other conditions usually contained in leases are nonessential. The time of payment even need not be specified, for when not stated in the lease nor governed by usage, it is fixed by the law. (Civ. Code, sec. 1947.)