Earl Orchard Co. v. Fava

CHIPMAN, C.

Unlawful detainer. The cause was tried by the court, without a jury, and plaintiffs had judgment from which and from the order denying his motion for a new trial defendant appeals. The court made the following findings: That defendant’s lease of the premises in question was made in October, 1898, to commence on December 1, 1898, and end on November 30, 1899; that it was renewed for a second and third year, terminating each year on November 30th, the third year terminating November 30, 1901; that on December 7, 1901, plaintiffs made demand of defendant in writing for possession of said premises, and on January 9, 1902, they made another demand upon defendant in writing to deliver up possession; “that no three days’ notice to quit and surrender the possession of said premises to the plaintiffs, or any other written notice than heretofore found, was ever served on the defendant, before the complaint was filed”; that defendant refused to surrender possession to plaintiffs, and still continues to hold and occupy the premises. It is further found that at the time the lease was first made, William N. Runyon (now deceased) and Emma Earl were the owners of the premises, and at that time verbally agreed with defendant on the térms for a three years’ lease, and the same was reduced to writing and was agreed to by defendant; that Mrs. Earl, who resided at Los Angeles, refused to execute the lease or to lease the premises for a term “longer than one year at a time, and agreed upon the terms of said lease for the first year, which fact was communicated . . . to” defendant, “and he went into possession under a verbal lease for one year.” As conclusion of law, the court found that plaintiffs are entitled to possession and for damages in the sum of three hundred dollars, being treble dam

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ages occasioned to plaintiff's by the unlawful withholding of the possession. Judgment was accordingly entered.

When the complaint was drawn the written form of lease was not at hand, and all parties supposed the term ended October 31st, and it was so alleged in the complaint. During the trial the written form of lease was discovered, which showed the termination to be November 30th, and on plaintiffs’ motion the complaint was amended accordingly, but over defendant’s objection. Mrs. Earl’s interest in the land was conveyed to the Earl Orchard Company, plaintiff. Mr. Runyon died in the lifetime of the lease, and his widow and administratrix subsequently became Mrs. Stephenson, plaintiff. Defendant interposed a general demurrer to the complaint and also a special demurrer, the latter on the ground of uncertainty and ambiguity, in that it does not appear within what time defendant was required to surrender possession; nor does the date of the notice appear; nor that three days elapsed from the date of the notice until the commencement of the action; nor that at what times within sixty days after the termination of the lease the notices referred to in the complaint were given.