Shamp v. White

Henshaw, J. Action for unlawful detainer, brought under subdivision 1 of section 1161 of the Code of Civil Procedure.

The appeal is from the judgment. Exception is taken to the decision on the ground that it is not supported by the evidence. The evidence and the rulings complained of are presented by bill of exceptions.

The complaint averred defendant’s entry under a lease which which was pleaded not in precise words, but by its legal effect. The answer denied the making of the lease pleaded in the complaint, and affirmatively set forth in full the contract between the parties. This was sufficient to present issues for determination. (Murphy v. Napa County, 20 Cal. 497; Gilman v. Bootz, 63 Cal. 120.)

The findings of the court are neither inconsistent nor contradictory. They declare against the lease and the holding pleaded in the complaint, and in favor of the instrument and possession set up in the answer.

[222]By the indenture plaintiff leased a farm to defendant “ for the term of one year from November 16,1892, to November 16, 1893, with the privilege of renewal of this lease for one year at the same terms at the pleasure of the party of the second part,” The contract here expressed was one for a renewal of the lease, and not one for an extension of the term, despite the language subsequently used—“ at the expiration of this lease, if not extended as heretofore mentioned, the party of the second part will quit,” etc. The distinction becomes important for this reason: Being a lease with a privilege of renewal, it was incumbent upon the lessee desiring to exercise his option to give notice of his election before the expiration of the original term; while, if the lease had provided merely for an extension, his remaining in possession (no specific form of notice having been required) would have been sufficient notification of his decision. (Renoud v. Daskam, 34 Conn. 512; Delashmam v. Berry, 20 Mich. 292; 4 Am. Rep. 392; 1 Taylor on Landlord and Tenant, sec. 332; 2 Wood’s Landlord and Tenant, 2d ed., 947; 6 Lawson’s Rights, Remedies, and Practice, sec. 2833.)

The trial court treated the contract as one providing for renewal, and found that defendant notified plaintiff of his intention to remain for another year upon the fifteenth day of October, 1893, before the expiration of the original term. Upon this finding, as upon others attacked, the evidence is conflicting, and, under the rule, it will not be disturbed.