Orly v. Russell

STURTEVANT, J.

The plaintiff sued the defendant in an action of forcible entry and unlawful detainer; a trial was had before the court sitting with a jury; the jury returned a verdict in favor of the plaintiff for the restitution of the premises and $450 damages. The defendant moved for a new trial on all of the statutory grounds, the motion was denied, and the defendant has appealed under section 953a of the Code of Civil Procedure.

One Hamble owned a building on Macdonald Avenue, in the city of Richmond, which building was divided into two compartments, one known as 1100 and the other as 1102 Macdonald Avenue. In February, 1919, R. H. Curry held a lease on the building. While he was lessee the plaintiff rented, for no specified term, the compartment known as No. 1102 and paid his rent to the lessee in the sum of $18 per month, that is from the seventeenth day in the month to the seventeenth day of the next month. The lease which Curry held from the landlord contained an option that the lease could be canceled on the request of the lessee whenever prohibition was about to take effect. Accordingly the lessee took such steps that his lease was canceled July 1, 1919. Thereafter, during the month of July, the landlord leased some part of the building to Charles Russell, and on the

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same day the landlord called on the plaintiff and collected in cash one-half of one month’s rent; at the same time the landlord and the plaintiff had a conversation in which it was discussed that the lease had been or was about 'to be made to Bussell and the future tenure of the plaintiff was discussed as being problematical. The record shows no conversation or communication between the plaintiff and the defendant except as will presently be stated. Between 7 o’clock Saturday, August 29, 1919, and Monday morning following, someone entered the premises known as No. 1102 by means of breaking off some hooks on a back door which led into the premises known as No. 1100. After so entering a board was so fastened across the front door as to prevent an entrance. On September 2d the plaintiff and his attorney served a notice on the defendant requiring the defendant to surrender possession to the plaintiff within five days. At that time the defendant is quoted as stating, “I can’t give up that way, up the place”; in another part of his testimony the plaintiff quotes the language as being, “It is a nice way I could give you back now your place”; and in another place he uses the expression, “Fine way I could restore the shop now to you.”