Ito v. Schiller

PRESTON, J.

Appeal from judgment for plaintiffs in a,n action to recover possession of premises held under a written lease and damages suffered through their ejectment therefrom.

Plaintiffs’ first amended complaint set forth three causes of action based upon a five-year written lease to them of certain premises, alleging that defendants entered upon the property some eight months after execution of the lease, removed buildings therefrom and withheld possession from plaintiffs, wherefore they prayed for restitution of the premises, damages for waste and the unlawful withholding and for value of rents and profits and costs of suit. Defendants answered and also cross-complained, alleging their termination of the lease upon written notice to plaintiffs for nonpayment of rent, praying that plaintiffs take nothing and that defendants have judgment in the sum of $867, with interest, representing the balance alleged to be due upon

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rentals covering the period of occupation of the premises by plaintiffs.

The court found that defendants executed to plaintiffs, for a period of five years from September 1, 1926, at a monthly rental of $200 for the first three years and $225 for the two years following, a written lease of, said premises, which lease was a valid and subsisting leasehold interest which had not been canceled, surrendered or otherwise terminated ; that on December 1, 1926, defendant Gonzales secured the consent of plaintiff Ito to use temporarily the gasoline station and wash-rack located upon the front portion of. the premises and thereupon used the same from December 1, 1926, to July 1, 1927, upon a month to month basis, terminated by notice from plaintiffs to defendants served on or about May 23, 1927, paying therefor $875 by crediting the sum of $125 per month against the $200 accruing monthly as rental due from plaintiffs to defendants pursuant to said five-year lease; that said temporary arrangement' did not result in a cancellation or surrender of the plaintiffs’ five-year leasehold interest nor in a merger, either in whole or in part, of said leasehold interest in defendants’ reversionary interest; that plaintiffs paid defendants the sum of $2,000 covering rentals in full from September 1, 1926, to July 1, 1927, plus $225 deposited by them as security for the payment of rent; that defendant Gonzales wrongfully dispossessed plaintiffs of the entire premises on said July 1, 1927, and has wrongfully withheld the possession thereof from plaintiffs since said date; that the rental value of the premises is $400 per month. The court thereupon concluded that plaintiffs were entitled to receive from defendant Gonzales the sum of $2,400, being $200 per month from said July 1, 1927, to time of judgment, and restitution of the premises, defendants to take nothing by reason of their cross-complaint. Judgment was entered accordingly and defendants appealed.