Pinque v. J. B. Hill Co.

NOURSE, J.

Plaintiff sued for the recovery of damages sustained by reason of the taking of certain personal property under a writ of, execution on a judgment which was subsequently reversed on appeal. Plaintiff herein, who was the defendant and judgment debtor in the former action, was a tenant of the defendant herein. The former action lay in two counts, one alleging a cause of action in ejectment in the ordinary form and the other alleging that the plaintiff therein had elected to terminate the lease upon the ground that the lessee had forfeited her rights under the terms of the lease. Judgment in that action went for the plaintiff but was reversed on appeal to the supreme court. (J.

B. Hill Co.

v.

Pinque,

179 Cal. 759 [3 A. L. R. 669, 178 Pac. 952].) The judgment in the superior court had, however, allowed the J. B. Hill Co. $509 by way of dam

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ages for injury to the building and the further sum of $300 as the value of the use and occupation of the premises. Execution was had upon that judgment pending the appeal, and the personal property, consisting of machinery, tools, and appliances used by the lessee for the purpose of conducting an automobile garage, was sold and the defendant herein was placed in possession of the premises. Upon the return of the

remittitur

from the supreme court the J. B. Hill Company filed an amended complaint setting up three distinct causes of action, the first in ejectment, the second for damages for waste committed on the premises by the lessee, and the third for the cancellation of the lease upon the ground that the terms thereof had been changed contrary to section 1700 of the Civil Code. The trial judge sustained the demurrer to the first and third causes of action and the case went to trial upon the second. Judgment was thereafter rendered in favor of the lessee, from which and the order sustaining the demurrer to the first and third causes of action the Hill Company appealed. The judgment in so far as it related to the first and second causes of action was sustained, but was reversed upon the ground that the trial court was in error in sustaining the defendant’s demurrer to the third cause of action. (J.