Cook v. Klenk

COOPER, C.

This action was brought to recover possession of a certain lodging-house known as the “White House” and the lot upon which it stands, said premises being in the city of Sacramento.

At the close of plaintiff’s evidence, the court, on motion of defendant, granted a nonsuit, and judgment was accordingly entered. Plaintiff prosecutes this appeal from the judgment on a bill of exceptions.

It is alleged, and not denied, that plaintiff’s testate was, at the time of her death, the owner, in the possession, and entitled .to the possession of the premises described in the complaint.

Defendant is the surviving husband of deceased. His sole contention is, that after the death of his wife he became, by virtue of a contract or agreement with plaintiff, a tenant at will of the premises, and as such was entitled to thirty days’ notice before his tenancy could be terminated. It is not

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claimed that such notice was given. The case, therefore, must turn on the question as to whether or not the defendant, after the death of his wife, became a tenant at will of the premises, or the agent of plaintiff for the purpose of collecting the rents from the lodgers and turning them over to the plaintiff. It must be borne in mind that at the time of the death of deceased there was no such relation as landlord and tenant existing between her and the defendant, or between the defendant and any one. Before and up to the time of her death she was the owner and in possession of the lodging-house. Defendant does not appear to have had any right to the property or to the possession thereof at the time of the death of his wife, but has been in charge of it since her death. The plaintiff testified that immediately after the death of deceased he went with his attorney, Joseph, to the house, and that the following took place: “We spoke to defendant about the place, and defendant said he guessed he would have to take his things and get out, and we told him that it was not necessary for him to do that; that if he would pay me the rent he could go right along with the house—which he did from that time on until some time in March. . . . He was to collect the rent from the lodgers and turn it over to me. That is the way I understood it right along; he did so too. . . . That is the only arrangement I ever made with him that I was to collect the rents, he was to remain there.”