Arnold v. Krigbaum

ANGELLOTTI, C. J.

This is an action in unlawful detainer and to recover the amount of rent due. The defendants in their answer set up by way of defense an alleged violation by the lessor of a covenant on her part to make certain repairs, whereby they had been damaged in the sum of ten thousand dollars, and also had been compelled to make expenditures to the extent of nine hundred dollars in making certain necessary repairs. They also pleaded the same matters

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by way of counterclaim and also by cross-complaint. On motion the court struck out the counterclaim and cross-complaint, and at the trial refused them permission to introduce evidence in support of their defense on this ground and entered judgment for the plaintiff for the sum of eight hundred and seventy-five dollars and costs. By stipulation of the parties said judgment contained no provision for the forfeiture of the lease. We have before us an appeal by defendants from said judgment.

It appears to be thoroughly established both in this state and in other jurisdictions having substantially similar statutes to our unlawful detainer statutes, that neither a counterclaim nor cross-complaint of any kind is permissible in an action in unlawful detainer. This question was discussed by the district court of appeal of the first district in the recent case of

Knight

v.

Black,

19 Cal. App. 518, [126 Pac. 512], where many authorities are cited. There is no distinction in the authorities between cases where the subject-matter of the attempted counterclaim or cross-complaint arises out of a violation of the terms of the lease upon which the action is brought, and other cases. It is said in 24 Cyc. 1424, that the interposition of a setoff or counterclaim is usually not permissible in an action for unlawful detainer, or summary proceeding. A covenant to repair on the part of the lessor and a covenant to pay rent on the part of the lessee are usually considered as independent covenants, and unless the covenant to repair is expressly or impliedly made a condition precedent to the covenant to pay rent, the breach of the former does not justify the refusal on the part of the lessee to perform the latter. In