Bradbury v. Higginson

SLOSS, J.

The plaintiff brought this action to recover six hundred dollars, rent claimed to be due under a lease of a house at Montecito, Santa Barbara County. The lease, which is set out in full in the complaint, was for five years from

[555]

the first day of January, 1905, at a monthly rental of one hundred dollars, and the amount here sued for is the rent for the last six months of the terms, i. e., July to December, 1909. The complaint, which alleges nonpayment of rent after July 1, 1909, was filed on June 18, 1912. In a former action for the recovery of the same sum, commenced in August, 1909, a judgment in favor of plaintiff had been reversed on the ground that the action, viewed as one for rent, was premature, such action not being maintainable in advance of the time when rent was payable under the lease.

(Bradbury

v.

Higginson,

162 Cal. 602, [123 Pac. 797].)

In the present action, the defendant filed an answer, in which he denied the plaintiff’s general allegation of performance of all conditions precedent, and set up affirmatively the failure of plaintiff to comply with an alleged obligation to furnish water to the premises, by reason of which failure the defendant had rescinded the contract of lease. A demurrer to the answer was sustained, and defendant declining to amend, the plaintiff had judgment for the amount claimed. The defendant appeals from such judgment.

The answer, read as a whole, clearly shows that the denial of performance of conditions precedent, above referred to, was intended to be qualified by and to refer to the affirmative allegations relative to the failure to furnish water. Indeed, it is not suggested that there was any other condition to be performed by the plaintiff. The implied covenant to protect defendant’s possession (Civ. Code, sec. 1927) was not broken, as appears from the uncontroverted facts alleged in the pleadings. The real question, therefore, is whether these affirmative allegations set up a defense good against the demurrer interposed.

The matter thus pleaded was in substance as follows: At the time of the execution of the lease, it was mutually agreed that, in consideration of the payment of the rent, the plaintiff at all times during the terms of the lease would, at her own cost, keep the house and premises supplied with necessary water from plaintiff’s water-plant. Without said agreement the defendant would not have accepted the lease. In reducing the lease to writing, the agreement to furnish water was by mutual mistake omitted. The premises had no other water supply. About June 29, 1909, the premises became uninhab