Boswell v. Merrill

California Court of Appeal Mar 9, 1932 No. Docket No. 7129.Published

Before: Tappaan

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Holding. The court held that a lessor who takes unqualified possession of surrendered premises without notifying the lessee that the possession is for the lessee's benefit accepts a surrender of the lease, thereby releasing the lessee from further obligations.

Issues

Whether the lessor accepted the surrender of the lease by taking unqualified possession of the premises.
Whether the trial court's findings based on conflicting evidence regarding notice of re-letting for the tenant's benefit are subject to appellate review.

Disposition. affirmed

Quotations verified verbatim against the opinion

“If the lessor takes possession of property delivered to him by his tenant and does so unqualifiedly, he thereby releases the tenant.”

“An unqualified taking of possession by the lessor and reletting of the premises by him as owner to new tenants is inconsistent with the continuing force of the original lease.”

“The determination of that court in favor of either party upon conflicting or contradictory evidence is not open to review in this court.”

[477]

TAPPAAN, J.,

pro

tem.

The defendants had judgment in the court below and plaintiff appeals therefrom. Plaintiff, the owner of a so-called service station, leased the same, together with equipment, to defendants Merrill and Jessup for a term of years. The lessees at the time of the execution of the lease deposited with the lessor a sum equal to the rent for the last three and one-half months of the lease. Among other provisions of the lease was one that provided as follows:

“It is expressly understood and agreed by and between the parties hereto that upon the actual taking or use of any property for the widening of Tenth Street, and at any time thereafter and during the progress of said improvement, or any other public improvement, that shall, in the opinion of the Lessees, materially interfere with peaceful or profitable occupation of the demised premises or any portion thereof, the Lessees may, at their option, wholly terminate this lease by giving notice to the Lessor of their intention so to do.”

Defendant Newlin by a written instrument guaranteed the performance on the part of the lessees of the covenants of the lease. This guarantee was limited to the original parties to the lease.

On the nineteenth day of August, 1927, and during the term of the said lease, the defendant-lessees caused to be served upon plaintiff, as lessor, a notice of their intention to terminate said lease under the provision of .the lease as to public improvements heretofore referred to and quoted, and demanded the return of the sum deposited by them upon the execution of the lease. Plaintiff thereafter, on August 25, 1927, notified lessees that she refused to recognize their right to terminate the lease and demanded that they pay certain rent then due and unpaid, and, “Unless this demand is complied with immediately, I shall take such steps as may be necessary to enforce its terms.”

On August 29, 1927, the date fixed for the termination of the lease in the notice served upon plaintiff by defendant-lessees, defendant Jessup delivered to plaintiff the keys to the leased premises. Within the next day or two plaintiff put one McCulloch in charge of the station and on September 15th leased it to him for the balance of the lease originally made to defendants, and at a monthly

Boswell v. Merrill

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TAPPAAN, J.,

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