Hosea v. Brather

GRIFFIN, J. Action for unlawful detainer and damages. Defendent and appellant Charles Brather, by written lease dated August 25, 1939, leased, from Bertha Lawrence, the Raleigh Apartment House in San Diego, comprising about 18 apartments, and its furnishings and equipment as inventoried. He went into possession, used one apartment for his own living quarters and rented the balance to tenants. The lease was subsequently extended so as to expire August 31, 1945. Bertha Lawrence, on November 28, 1944, sold the property and assigned the lease to plaintiff herein. The lease, among other provisions, contained the following: ‘ ‘ The lessee shall . . . keep and maintain in good order, repair, and condition, at his own expense, the interior of said apartment house, and agrees to flush the plumbing connection with the sewer at least every ten days.” The lessor agreed to make all major repairs to the plumbing in the 'building. The lessee agreed to “keep and maintain all the herein described personal property, equipment, furniture and fur-3iishings, included in the leased premises, in good condition and repair during the period of this lease . . . and surrender the same to the lessor at the expiration of the period of this lease in as good condition as said property shall have been at the time of the commencement of the term hereof, except for the ordinary use and natural wear”; to “promptly repair any of said property that may become damaged, broken or so worn as to become unfit for the purpose intended”; to “replace the same with other property of the same kind and character, and of at least equal in value as the prop[828]erty so replaced; . . . that during all of said term said premises and every part thereof shall be kept by the lessee at his own expense in a clean and wholesome condition and in compliance with all health regulations”; that if lessee fails to perform any condition of the lease and continues to do so for ten days after service of notice of such default, lessor may terminate the lease.

The trial court found that the provisions of the lease had been breached by the lessee, particularly in reference to the failure of the lessee to keep and maintain in good order, repair and condition, the interior of the apartment house and to flush the plumbing connection at least every ten days during the term of the lease; that on December 20, 1944, the Board of Health condemned the premises as unsanitary and unfit for human habitation, and notice thereof was served upon defendant and posted on the property; that defendant did not repair all damaged or broken furniture as required by the lease nor did he replace all worn-out furniture and furnishings ; that plaintiff did, on January 5, 1945, serve upon the defendant a written demand requiring that he keep and maintain the interior of the premises in good order and condition, that he flush the plumbing connection with the sewer every ten days, and that he repair any damaged, broken or worn-out furniture or furnishings and that unless he did so within ten days the lease would be canceled and terminated; that the defendant did not, since the receipt of the notice, keep the interior of the premises in good order, repair and condition, and did not replace all broken or worn-out furniture. The court then found that plaintiff had been injured by the acts and omissions of defendant, and was damaged as follows: $250 for failure to maintain the plumbing in good condition, and $500 additional for failure to replace damaged, worn-out, or missing furniture and furnishings. The court rendered judgment for restitution of the premises “and such portions of the furniture or furnishings therein as are listed or inventoried in the lease and were in existence at the time of the filing of the complaint for money damages,” totaling $750.