Markowitz v. Ikemoto

SCHOTTKY, J. In 1951, appellant purchased the leasehold interest in certain premises known as the Alaska Hotel in the city of Sacramento. A new lease was executed between appellant and respondent which provided, in part:

“The Lessee shall personally occupy said demised premises and shall keep the same in good repair, including all improvements which may hereafter be added, damage by the elements excepted, and shall not make alterations thereon without the written consent of the Lessor and shall not commit or suffer to be permitted any waste on said premises.

“At the expiration of said term or the sooner determination thereof, the Lessee shall peacefully quit and surrender possession of said premises in as good condition as reasonable use and wear thereof will permit.”

In 1955, appellant moved out of the premises and delivered a notice of rescission to respondent. Respondent thereafter commenced an action against appellant, seeking to recover rent, attorney’s fees and damages for breach of the covenant to repair. Appellant filed a cross-complaint seeking a cancellation of the lease and a promisory note executed contemporaneously therewith. The trial court held that appellant had surrendered up possession of the leased premises and that respondent had accepted possession, and ordered that the lease and note be cancelled. The court, however, awarded respondent damages in the sum of $1,376.30 for breach of the covenant to repair. Appellant has appealed from the part of the judgment awarding damages against him.

Appellant’s major contention is that the judgment must be reversed because of a finding of the trial court that “during the trial it became necessary to determine the condition of the premises when defendant went into possession, and [244]the Court finds that no one was able to do so.” However, the rule is well settled that all of the findings must be read together and that any uncertainty or ambiguity in the findings must, if possible, be construed in support of the judgment. (28 Cal.Jur.2d, p. 729.) The court made the further finding that ‘‘during the course of the trial it became necessary to take an accounting of the necessary items of repairs, material and work done, furnished and performed in order to arrive at the amount of damages suffered by the plaintiff by reason of the failure of the defendant to perform the conditions imposed upon the defendant during his occupancy thereof.” The court then proceeded in its findings to detail the various items of repair made to the premises by respondent, amounting to $3,120, and segregated the items and amounts that the court determined were shown by the evidence to have been made necessary by appellant’s breach of the covenant to repair. Specifically the court allowed damages in the amount of $440.32 for plumbing supplies and repairs, $506.71 for plaster and paint paid to the plumbing contractor, $158.20 for new locks; $9.36 for new light bulbs, $40 for new electric sockets, and $221.71 for new window glass and replacement of glass in a skylight plus repairs to the skylight. These items totaled $1,376.30. Judgment was rendered in the amount of $1,376.30, Appellant argues that since respondent had the burden of proving damages and since he could not show the condition of the leased premises at the beginning of the lease, he was not entitled to damages. However, the question that we must determine is whether or not there is evidence in the record upon which the court could base its finding of damages against appellant. It is true that respondent could not state the exact condition of the premises at the beginning of the lease, but we are satisfied that there was ample evidence that it was in fairly good condition at that time. Mr. Markowitz testified that in 1946 he remodeled and repaired the whole building, with complete new wiring, plumbing, painting and other repairs; that in 1948 he inspected the premises and found them in excellent condition, and during the years 1949, 1950, and in 1951 prior to appellant’s taking possession he visited the premises, and while he made no inspection of the premises, so far as he could observe they were in good condition. Appellant applied for a permit to occupy the leased premises, and the inspector reported to the health officer that he had made a careful inspection of the premises and recommended that the permit be issued. It is hardly likely that the inspector would have