Strom v. Union Oil Co.

NOURSE, P. J. This is an appeal by plaintiffs A. T. Strom and Ethel Strom, husband and wife, from a judgment in favor of defendant, Union Oil Company of California, herein further referred to as Union Oil Company, in an action in unlawful detainer.

When appellants acquired the service station property subject of this action Union Oil Company was lessee under a duly extended lease from the former owners, Mr. and Mrs. Wells, which, as extended, was to run until September 31, 1951. The lease included some equipment; an appendix specified what equipment was owned by the lessor and what by the lessee. The monthly rent of $140 payable in advance was being paid regularly by mailing checks to a bank to whom the Wells had assigned.

On July 17, 1946, Union Oil Company was informed by the bank of the release of the assignment. Prior to that date respondent had been told of an intended sale of the property and there had been some conversations with the prospective purchaser, appellant A. T. Strom, who wanted to see the lease. After receipt of the release Mr. Andrews of Union Oil Company telephoned Mr. Wells more than once asking for new payment directions. Mr. Wells promised soon to send directions by letter. In the meantime appellant A. T. Strom had some more conferences with Union Oil Company in which he tried to persuade it to consent to an increase of the rent. He testified that when these conferences did not lead to any result, he left, repeating twice to a Union Oil Company official: ‘1 The only thing that I have to say, Mr. Newhoff, is that you live up to the terms of this lease to the letter,” and he commented further, “All I wanted was the property back.” He did not give any definite information or direction. Only by letter of Mr. and Mrs. Wells of August 21, 1946, was Union Oil Company informed that the premises had been transferred to Mr. A. T. Strom on July 8,1946, that the rental paid on July first had been turned over to him and that all further payments had to be made to Mr. A. T. Strom of 1229 Nevin Avenue, Richmond, California. At the same time the transfer of a hoist located on the premises from Union Oil Company to the owner against payment of $75 by Mr. Wells [80]was arranged. Union Oil Company prepared a new appendix to the lease accordingly and by letter of August 29th, 1946, sent it in duplicate for signature to Mr. Strom at the Nevin Avenue address. In the same letter Union Oil Company referring to the letter of Mr. and Mrs. Wells, asked to be advised whether title to the premises was taken in joint tenancy or as Mr. Strom’s separate property so that payment of rentals could be made in the proper manner. Mr. Strom testified that he received the letter but did not answer it. Instead on September 6,1946, appellants sent a letter to Union Oil Company at its San Francisco office requiring it to pay rent for the months of August and September, 1946, or deliver up possession of the premises within three days after service of that notice, and electing forfeiture of the lease in case of noncompliance. The letter did not contain any direction as to place or mode of payment. The letter reached the office on September 7th, a Saturday, on which day the office was not open for regular business. The next Monday, September 9th, Union Oil Company sent two checks for the two months’ rent by registered mail to appellants at the 1229 Nevin Avenue address, which Mr. Strom admitted was his business and mail address and the residence of his mother. On September 10th, the notice to pay rent or quit was personally served at Union Oil Company’s office at San Francisco and on the leased premises. The same morning the registered letter was offered by a postman at 1229 Nevin Avenue where Mr. Strom’s mother refused to sign for it. The letter therefore went back to the postoffice; the same day a notice of arrival was left by the postman in the mail box at 1229 Nevin Avenue and a second notice was delivered in the same manner on September 13th. It is conceded that only with the service on September 10th the requirements of section 1162 of the Code of Civil Procedure as to service were fulfilled and that the three days’ period included September 13th. Appellants did not claim the registered letter at the postoffice nor did they communicate in any manner with respondent. On September 20, 1946, the letter was returned to respondent “unclaimed.” Respondent tried to contact appellants personally at the Nevin Avenue address but was referred to a ranch near Concord where on September 24, 1946, the checks were personally tendered and refused. Asked why he did not accept the checks when mailed to his mailing address Mr. Strom answered, “They were received too late.” On September 27, 1946, the summons in this action in unlawful detainer was