Davis v. Stewart

STURTEVANT, J. This is the third appeal in the above entitled action. (Davis v. Stewart, 31 Cal.App.2d 574 [88 P.2d 734] ; Davis v. Stewart, 53 Cal.App.2d 439 [127 P.2d 1014].) The facts are fully set forth in those decisions. After the remittitur went down in the case last mentioned, and on or about October 1, 1942, the defendant surrendered possession of the premises in dispute. Later the plaintiff filed a supplemental complaint asking for a final accounting of defendant’s stewardship from February 29, 1940, to October 1, 1942.

The plaintiff alleged and introduced proof to the effect that the defendant so negligently and carelessly operated said premises that he has failed to collect the rentals due therefrom. The trial court made findings on said issues in favor of the plaintiff as to rentals due from three several tenants.

The Graham Lumber Company, one of the tenants so in arrears, held a lease to one parcel. It was used by said company for a lumber yard. Immediately adjacent to that parcel is an unimproved tract about 100 feet square. Under an oral agreement the Graham Lumber Company occupied the additional ground as an overflow lumber yard during a period of three months and paid $25 per month. At the end of that [418]period it continued to occupy said lot but for the extended period defendant did not collect any rents from such tenant. Nor did the defendant attempt to evict said tenant. There is no evidence said oral agreement was ever cancelled. He now asserts that the ground was low, overflowed tidewater lands not suitable for a lumber yard. It does not appear that the ground was otherwise when said tenant entered thereon. In the absence of an express covenant or stipulation binding him so to do, the landlord is under no obligation to put the demised premises in any particular condition. (15 Cal.Jur. 690.) Again the defendant contends said lot was not occupied continuously. It is enough to say that there was evidence that there was at least some occupancy at all times and the finding to that effect may not be disturbed.

The other two tenants held leases, occupied parts of the premises, and paid the rentals set forth in their leases into a fund in a reputable bank for the benefit of the legal owner. As Mr. Davis was asserting rights to said moneys and Mr. Stewart was making cross demands, the other two tenants filed interpleader suits. The defendant made no attempt to bring said actions to trial. As to each of the three tenants the most that can be said is that there was some conflict in the evidence but there was evidence of the want of care of a reasonably prudent business man. The defendant was therefore liable for the uncollected rentals. (Murdock v. Clarke, 90 Cal. 427, 439 [27 P. 275].)