Brawner v. Wilson

MUSSELL, J. This is an action in unlawful detainer in which plaintiff (lessor) recovered judgment against the defendants (lessees) for possession of the leased property, the amount of rent found to be due, damages for detention, attorney’s fees and costs.

The lease, executed October 17, 1951, was for a period of three years and the property involved consisted of 124 acres of farm land in San Diego County. It was agreed that approximately 75 acres of this land was, at the time of the execution of the lease, ready for use and cultivation by the lessees and that approximately 49 acres was to be disced and cleared by the lessor and ready for use and cultivation by lessees on or before July 1, 1952. Lessor agreed to furnish all water reasonably needed by lessees from a well on the property. It was further agreed that any surplus water from said well not actually consumed by lessees might be used by the lessor and that he should pay lessees therefor at the rate of “60(5 per K.W.H.” for the electricity consumed while lessor used the “60 H.P.” pump at the well.

Defendants in their answer to the complaint denied that they were ever put in possession of the 49-acre tract; denied owing any rental and affirmatively alleged failure of plaintiff to perform the conditions of the lease and put the 49 acres in condition for use and further cultivation. As a further and separate defense defendants alleged that plaintiff had [383]not paid lessees the sum of “60^ per K.W.H.” for the use of electricity consumed in pumping water for lessor’s purposes and that by reason of such nonpayment by lessor, lessees did not owe any rent for the demised property.

There is substantial evidence in the record supporting the implied finding of the court that plaintiff disced and cleared the 49 acres in the manner specified in the lease. (After trial by the court without a jury, written findings of fact and conclusions of law were waived by written stipulation of counsel.) In this connection plaintiff testified that the entire 124-acre tract was prepared in the same manner and that the easterly part of it (49 acres) was just as well prepared as the westerly part; that he directed his employees to prepare the 49-acre tract just the same as they had the 75-acre tract; that when he talked with defendant Wilson in June and July, 1952, Wilson made no request that plaintiff clear the 49-acre portion or that he, plaintiff, should do anything more or different to the 49 acres.

Henry Conant, who did the work of preparing the land for plaintiff, testified that he worked on the 49-acre portion from November 5th to November 21st, 1951; that when he started his work, the 49-acre portion had been cleared of brush and had been disced the same as the 75-acre portion, except for some large holly bushes; and that he left both portions of the ranch in the same condition when he finished his work. Henry Vogt, who also worked for plaintiff in clearing and leveling the entire tract, testified that in his opinion the 49-acre portion was ready for further cultivation by a farmer after he, Vogt, had finished his work on it.