Dwyer v. Carroll

Gibson, C. This appeal is brought by the defendant from a judgment entered upon a verdict for five hundred dollars, rendered against him in an action of trespass prosecuted by plaintiff; also from an order, made therein, denying him a new trial. The plaintiff, in his complaint, alleged that, by virtue of a lease from the defendant, he was the tenant, and, as such, was in the possession of certain premises on Mission Street, in San Francisco, known as the Union Hotel, which he used in carrying on the business of keeping an hotel, from the first day of February, 1886, until the tenth day of November, 1886, when the defendant forcibly and unlawfully invaded the said premises, and ejected the plaintiff therefrom, and tore down and destroyed the building thereon, and removed and destroyed a large portion of the furniture in said building, and withheld the possession of the premises from the plaintiff; that, at the time of such ejection, the plaintiff was earning a net profit of over two hundred dollars per month in his said business of hotel-keeping; [300]and that, by the trespass of the plaintiff, the defendant’s peaceable possession of the premises was destroyed, and his said business ruined, to his damage in the sum of five thousand dollars.

Defendant, in his answer, admitted the relation of landlord and tenant, as alleged by plaintiff, but denied that he committed the trespass, or withheld the possession of the premises, or that the plaintiff was earning two hundred dollars, or any other sum, per month, as a net profit on his business of hotel-keeping, or that he sustained or suffered any damage whatever. It thus appears that the gist of the action is the unauthorized interruption by the landlord of the quiet and peaceable possession of his tenant.

The main question, then, is, Did the tenant suffer such an interruption? It appears, from the evidence, that, early in October, 1886, the tenant, who was holding from month to month, at the monthly rental of sixty dollars, payable in advance, brought to the notice of one Mc-Grath, the agent o.f the landlord, the fact that the Union Hotel building was in a dilapidated state, particularly the floor of the first story, which had settled several inches in places, and also a back stairway. This, in turn, was communicated to the landlord, who, a few days after-wards, caused the building to be examined, and upon learning that it was in a dangerous state for habitation, the foundation having decayed and given way, he, with the carpenter who made the examination and subsequently undertook the work upon it, went together to the building about the 7tli of October, and informed the tenant of the condition of the building, and that it could not be repaired unless it was vacated. The tenant said he did not want to have his occupancy disturbed until after the election, which was to be held on the second day of the following month of November, as he had rented a portion of the first story to the election commissioners for a polling-place. The landlord then said to