Falkenstein v. Steele

KINCAID, J. pro tem. Plaintiff appeals from an adverse judgment in an action brought by her as owner and lessor for the unlawful detainer of property leased by her to the defendant. The lease is in writing and the property covered by it consists of a small cafe building, service station, garage, and six cabins, located on the state highway between Bakersfield and Los Angeles and known as “Caswell Station.”

Under the first cause of action of plaintiff’s complaint a default by the defendant in payment of the rent provided for in the lease is alleged, and under a second cause of' action- the defendant is charged with the breach of certain conditions- of the lease in failing to paint and clean the premises and' using, a name thereupon other than “Caswell Station.” The complaint further alleges the service upon defendant of a three-day notice demanding the payment of the rent claimed to be in default or the surrender of the demised premises, and the subsequent service on defendant of a notice as required by the lease of plaintiff’s intention to terminate it by reason of defendant’s failure to perform the covenants and conditions heretofore described.

The trial court found that, although by the terms of the lease the rental payments were to commence on May 18, 1945, the defendant, was. not given- full- possession of the demised [400]premises by plaintiff until July 15, 1945; that defendant did obtain possession of a portion of the premises on or about the effective date of the lease but that no proof as to the reasonable value of the use and occupation of that portion so utilized was offered or proven at the trial, and that no rentals became due to plaintiff from defendant on May 18, 1945.

The court further found that in accordance with the terms of the lease and within thirty days after defendant got full possession of the demised premises, defendant cleaned and painted all buildings in the lease described and cleaned and placed in order, to the satisfaction of plaintiff, the grounds and premises, all at his own cost and expense, which was in lieu and in full payment of the first month’s rent from June 18, 1945, to July 17, 1945; that on July 18, 1945, defendant paid plaintiff $300 as rent under the lease for the period to August 18, 1945.

Under the second cause of action of plaintiff’s complaint, the court specifically found that defendant did paint and clean the demised premises to the satisfaction of plaintiff as in the lease provided, and at all times did operate the business and premises mentioned in the lease under the name and style of “Caswell Station” and not otherwise. The plaintiff contends that the evidence is insufficient to support the findings, that both fact and law require the reversal of the judgment, and that the findings are contradictory and do not support the judgment.