Derrick v. C. W. R. Ford Co.

LENNON, P. J.

This is an appeal from a judgment in favor of plaintiff in an action for unlawful detainer, and from an order denying the defendant’s motion for a new trial.

The material facts out of which this action arose are not disputed, and are substantially these: In January, 1909, the Alameda County Loan Association was the owner of certain premises at the corner of Sixteenth and Clay streets in the city of Oakland, embracing a storeroom, having an entrance on both streets, with a basement, and being susceptible of division into two stores, and being known as No. 1303 Clay Street. On January 9, 1909, the defendant wrote a letter to the said owner of these premises, offering to lease the same for a period of ten years at a rental of one hundred and twenty-five dollars per month for the first five years, and of one hundred and fifty dollars monthly for the remainder of the term. There were two provisos to the offer, of which the first was that the defendant was to have the privilege of subletting the premises in whole or in part to any responsible party; and the second was that certain alterations, such as connecting the Clay Street store with the basement, and erecting a partition dividing the two stores, were to be done at the expense of the owner of the building, the rent to commence when these alterations were completed. On January 13, 1909, the owner of the premises wrote a letter in reply to this offer, expressly accepting the same “with some small changes,’’ which were to the effect that the alterations were to be paid for by the lessee, and that a bond for security on the lease was to be given. Upon the receipt of this letter the representatives of the respective parties held an interview, at which the requirement as to the bond was waived by the owner, while the lessee agreed to make the proposed alterations at its own expense, except that it was to be allowed the favor of one month’s rent. Thereupon the owner of the premises turned the possession thereof over to the lessee, who at once proceeded to make the alterations contemplated by the parties at a cost of about five hundred dollars. A few days later the owner wrote another

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letter to

the lessee granting express permission tp make these alterations couched in the following terms: “In consideration of the lease entered into between your firm and our association, we hereby give permission to you,” etc. On January 31 the lessee moved into the premises, and on February 1st paid the owner the stipulated rental of one hundred and twenty-five dollars for the month commencing March 1st. Some little time after the lessee had gone into possession of the premises and made the aforesaid expenditures, the oxvner submitted a form of lease, which, however, the lessee declined to sign for the reason that it contained a provision prohibiting the subletting of the premises. The lessee on its part thereupon submitted a form of lease with this proviso omitted, which the oxvner declined to execute. There the matter rested, the lessee occupying the premises and regularly paying its rent at the stipulated figure, which the owner received for more than three years.