J. B. Hill v. Pinque

KERRIGAN, J.

This is an appeal from the judgment in favor of the defendants for costs in the second trial of an action brought originally for the cancellation of a lease upon the ground of nonpayment of rent and for the recovery of

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damages for waste, alleged to have been committed upon certain leased premises. In the first trial judgment went for the plaintiff, but upon appeal it was reversed (179 Cal. 759 [3 A. L. R. 669, 178 Pac. 952]), and upon the return of the case to the trial court the plaintiff amended its complaint, which, as thus amended, contained three counts, viz., (1) an action for the cancellation of the lease for waste under the provisions of subdivision 4 of section 1161 of the Code of Civil Procedure; (2) an action for damages to the property leased, committed by the tenant during the tenancy, by the removal of a part of the foundation of the leased premises, thereby causing the building to settle, to plaintiff’s alleged damage in the sum of two thousand dollars; and (3) a cause of action for the cancellation of the lease upon the ground that the defendants had wrongfully and fraudulently and without the consent of the plaintiff changed and altered the said lease from nine years to ninety-nine years.

To this complaint as thus amended the defendants demurred generally and specially, and the demurrers were by the court sustained to the first and third counts, trial being thereafter had upon the question of damages claimed in the second count.

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On this issue the court found that the defendants, in making certain permissible changes in said building, had committed no substantial waste, and that if said building was damaged by the making of said changes the damage had been done before the plaintiff became the owner of the premises and that it existed at that time. The evidence also disclosed that the plaintiff, through its president and others, examined the property before purchasing the same; that it knew the nature of the repairs that had been made to the building and regarded the consequent damage thereto as of a trifling nature. Under these circumstances it is clear that the plaintiff cannot maintain an action for waste in the absence of an assignment to him of the cause of action therefor. Title to the property at the time of the commission of the waste is necessary to sustain the right to an accounting for such waste. (40 Cyc. 527; 30 Am. & Eng. Ency. of Law, 282;