Kower v. Gluck

By the Court, Currey, C. J.: This action was brought in the County Court of the City and County of San Francisco, under the Act concerning forcible entries and unlawful detainers. The plaintiffs leased to the defendants, Gluck and Hansen, the basement of the premises at the corner of Sutter and Kearny streets, San Francisco, consisting of twenty feet on Kearny street and fifty-seven feet on Sutter street, for the term of one year, commencing the 1st of February, 1866. Subsequent to the date of the lease, and on the day of the commencement of the term, the same defendants covenanted and agreed with the plaintiff, Kower, to assign and transfer to him the leasehold granted to them whenever the consideration therefor should be rendered; and subsequently, on the 16th of April in the same year, they acknowledged the receipt of the consideration and made the assignment in pursuance of their covenant to do so ; and at the same time the plaintiffs and defendants, Gluck and Hansen, executed an instrument in writing declaring the lease cancelled and annulled; and the former released the latter from all future liabilities upon and under the lease. At the time of the assignment, transfer and surrender of the lease, the defendant Fricker was in possession of the premises as the under-tenant of Gluck and Hansen. Fricker continued in possession, and being in possession on the 23d of May, the plaintiffs caused a notice directed to each of the defendants by name, to be served on the defendants, Gluck and Hansen, demanding a surrender of the possession of the premises. Before then the [405]defendant, Flicker, received notice of the termination of the leasehold term, and was requested to vacate the premises. Notwithstanding these demands, Fricker continued to hold the possession of the property, and on the 11th of July the plaintiffs commenced their action for the recovery of the premises and for two hundred dollars per month as rent, from the date of the demand, which they asked the Court to treble, and for damages in the sum of one thousand dollars. Fricker was served with process, but made default. Gluck and Hansen answered, denying that the lease was binding upon them after the 16th of April, and pleading the cancellation of the lease on that day, and their release thenceforth of all liabilities upon and under it; and further denying that plaintiffs had suffered any damage whatever by reason of the alleged wrongful and unlawful withholding and detention of the premises.

The cause being tried without the aid of a jury, the Court found the execution of the lease as alleged; the entry of Fricker as the under-tenant of Gluck and Hansen; the cancellation and surrender of the lease as above stated; the detention of the premises by the defendants down to the date of the trial, and also that the demised premises were of the rental value of one hundred dollars a month, from the 16th of April to the time of the trial, which was on the 30th of July, 1866, and that by reason of such withholding and unlawful detention the plaintiffs were deprived of the use and enjoyment of the premises adjoining the demised premises, which belonged to them, to iheir damage in the sum of one hundred dollars a month; and the Court further found that the plaintiffs were entitled to recover as rents for the demised premises, during the period of the unlawful detention of the same, three hundred and forty-six dollars, and for damages for such detention, the further sum of three hundred and forty-six dollars, which sums, amounting to six hundred and ninety-two dollars, it was ordered and adjudged, should be trebled, making the amount two thousand and seventy-six dollars; and thereupon judgment was