Berryman v. Gibson

COOPER, P. J.

This is an action of unlawful detainer. The case was tried before the court, and findings were filed, in which judgment was directed to be entered for plaintiff. The defendant prosecutes this appeál from the judgment on the judgment-roll alone.

In such case we cannot examine the sufficiency of the evidence to support the findings, nor the rulings of the court in the admission or exclusion of evidence.

It is contended, however, that the complaint does not state facts sufficient to constitute a cause of action, and that the defendant’s demurrer to the complaint should have been sustained. ■ In appellant’s brief the reasons are pointed out why the complaint is claimed to be insufficient.

It is first claimed that the notice served August 10, 1906, changing the terms of the lease so as to make the rent on and after September 1, 1906, $150 per month instead of the sum of $40, “asheretofore paid by you,” was not sufficiently certain, because the complaint alleges that the rent under the prior verbal lease was $35 per month.

There is no merit in the contention. If the verbal lease was at $35 per month the defendant knew it, and the error in the statement did not tend to mislead or injure him in any way or in any manner. He was informed by the notice that the terms of his lease were to be changed, so that his rent from the time named in the notice would be $150 per month. The object of the notice was to change the amount of monthly rental which defendant had been paying, and the

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defendant was informed by the notice of such change. Not only this, but there is nothing in this record to show that the prior rent wás not $40 per month. The complaint may have erroneously stated that it was $35 per month, and the evidence may have shown, or the parties may have stipulated, on the trial, that it was $40 per month. We must presume1 that such was the case in favor of the judgment, as all presumptions are in favor of the regularity of the judgment.

On September 4, 1906, the plaintiff served a demand in writing upon defendant, demanding payment of the rent for the month of September, stating the amount due, and demanding that defendant pay the same or deliver up possession of the premises; and in October, 1906, a like demand was made for both the September and October rent. It is argued that the above notices were defective for the reason that they did not notify the defendant that he had three days’ time in which to pay the rent. The code provides (Code Civ. Proc., sec. 1161) that a tenant is guilty of unlawful detainer when he continues in possession “after default in the payment of rent pursuant to the lease or agreement under which the property is held and three days’ notice in writing requiring its payment, stating the amount which is due, or possession of the property, shall have been served upon him.” This action was not commenced until October 15, 1906; and it is alleged that the defendant neglected and refused for the space of three days after each of said demands to either surrender possession of the said premises or to pay the rent due. It is not necessary that the notice or demand specify the three days. Demand in writing must be made, the amount of rent due must be stated, and the payment thereof required. Then after such demand, if the tenant, without the permission of his landlord, remains in possession without paying his rent for three days, he has had three days’ notice in writing. The statute fixes the period of three days, and it must be read in connection with the notice; and when the period of three days has expired the tenant has had notice for three days, which is in substance three days’ notice in writing.