Halbert v. Jones

PEEK, J. By this action plaintiff, as lessee of certain lands situated in Merced County, sought a declaration of his rights and duties under a certain lease agreement entered into with the defendant as lessor. The complaint alleged that plaintiff had been evicted by the act of defendant in farming a portion of the leased premises and that plaintiff’s duty to pay rent was thereby terminated. The defendant filed both an answer and a cross-complaint. In the first he denied that plaintiff had been evicted and in the second he sought the rent alleged to be due under the lease and damages for certain items of personal property allegedly removed from the premises by plaintiff. Plaintiff’s answer denied generally the allegations of said cross-complaint. Upon the questions so presented the case was tried before the court sitting without a jury, and at the conclusion thereof findings of fact favorable to defendant were adopted. Prom the resulting judgment in favor of the defendant upon his cross-complaint, plaintiff has appealed.

Plaintiff’s main attack is directed at those findings wherein the trial'court found that by a written agreement the plaintiff leased 49 acres of land from defendant as a gravel pit, with the right to remove therefrom sand, gravel, and surface dirt for a period of five years from August, 1943, to August, 1948, but that said written lease did not embody the entire agreement of the parties, the specific findings being that a “part” of the agreement was “oral”; that the plaintiff orally agreed that the defendant might use certain portions of the leased premises for farming purposes during the term of the lease as long as he did not interfere with plaintiff’s right to remove sand, gravel and dirt from the land; that plaintiff “felt that it was beneficial to him” for defendant to so use the leased premises so that the undergrowth thereon could be kept under control, and that pursuant thereto defendant did farm “to a more or less extent” certain portions of the leased property during the years 1944 to 1947 inclusive.

It is appellant’s contention (1) that the trial court erred in admitting evidence of the oral agreement as found by the court, and (2) that the findings are not supported by the evidence and (3) therefore do not sustain the judgment.

The pleadings of the parties would appear to sustain plaintiff’s first contention since defendant by his answer admitted execution of the lease (a copy of which was attached to and incorporated in the complaint), and since no provision appears in that document reserving any right whatsoever in the lessor to enter and farm the demised premises, and since [786]