Hughes v. Burgeson

PATROSSO, J. pro tem.* In this action of unlawful de tainer for defendant’s- failure to surrender possession after the expiration of the terms of the lease under which the premises were leased, plaintiff recovered judgment for recovery of possession, damages for the detention thereof, accrued rent and taxes agreed to be paid by defendant as well as for damages by reason of defendant’s failure to construct certain buildings as required by the lease. Being dissatisfied with the amount allowed by way of damages for the latter item, plaintiff appeals from such portion of the judgment, the propriety of which is the sole question presented upon this appeal.

By the terms of the lease defendant was required to construct five or more “multiple residential units” of stucco construction with “cement floors and plastered inside or as mutually agreed upon”; the defendant undertaking to submit to plaintiff within 30 days “a plan of a multiple unit which he expects to use as a model” subject to the proviso that “such units however may be altered as mutually agreed upon.” No such plan was ever submitted by defendant but the trial court found that the parties had agreed that each unit was to consist of four apartments, with each apartment having a combination living-bedroom, kitchen with a dining area, and a bath. By a subsequent agreement dated November 15, 1950, the lease was modified so as to provide for the purchase by defendant of an existing building of six units, the purchase price thereof to be evidenced by a promis[538]sory note to be executed jointly by plaintiff and defendant but to be paid by the latter, and secured by a deed of trust upon the demised premises. The agreement contemplated that the building so purchased was to be moved upon the demised premises, and it was in fact so moved thereon at defendant’s expense; the agreement further providing that it should “be accepted by the Lessor in place of one of the five multiple units referred to in the original lease, which the Lessee . . . agreed to construct at his own cost on the leased property.” This building is identified in the record as 3.

The evidence discloses that during the negotiations between the parties leading up to the execution of the lease, but a few weeks before the formal execution thereof, defendant acquired and caused to be moved onto the demised premises a large building which was originally a garage, which he converted into two separate units consisting of five sleeping rooms each. Later, in the year 1947, defendant converted six of said sleeping rooms into apartments each containing a living room, kitchen and bathroom. These two buildings are designated in the record as “1” and “1.” Still later, in 1948, defendant acquired with funds borrowed from plaintiff, and by him later repaid, another existing building which he caused to be moved onto the demised premises. This building originally consisted of four motel rooms, but was altered or reconstructed by defendant into three apartments and one motel room, each apartment consisting of a living room, kitchen, shower and toilet. This building is designated in the record as 2.