Peiser v. Mettler

WOOD, P. J. This is an action by owners of a ranch for damages for removal of buildings and other alleged fixtures in violation of the terms' of a lease. Plaintiffs obtained judgment against defendants, who are the lessee and the assignees of the lessee’s interest in the lease.

Plaintiffs are owners of a section of land (in Kern County) which was leased to defendant Mettler in 1945 for approximately five years. Mettler moved a three-room house onto the east-half of the land (ranch).

Thereafter, in September 1946, Mettler sublet the ranch to defendants Fry. During the next month (October), the defendants Fry purchased a military barracks building, cut it into three parts, moved the parts onto the east-half of the ranch, and constructed two houses (dwellings) and a utility building therefrom.

On March 15, 1947, Mettler assigned the whole lease to [610]defendants Fry, who thereafter moved the last-mentioned three buildings (2 houses and utility building) from the east-half of the ranch onto the west-half thereof.

In February 1949, defendants Fry sublet the east-half of the ranch to defendant Garner, who constructed a utility building thereon. In 1950, defendants Fry exercised the option (referred to in the original lease) to renew the lease for five years.

In 1955 when the lease terminated, the defendants Fry removed the two houses and the utility building from the west-half of the ranch, and they also removed a water pump which they had placed on that part of the ranch. Also, at that time, the defendant Garner removed the three-room house and the utility building from the east-half of the ranch, and he also removed a water pump which he had placed on that part of the ranch.

Defendant Mettler, by cross-complaint, had sought to compel defendants Fry to pay any judgment which might be obtained against him in the action. Defendants Fry, by cross-complaint, had sought to compel Mettler to pay any judgment which might be obtained against them in the action.

The judgment which plaintiffs obtained was (1) against Mettler and the Frys for $6,400; (2) against Mettler, the Frys, and Garner for $1,900; and (3) against Mettler for $4,000 as attorney’s fees. Further provisions of the judgment were to the effect that, by reason of the cross-complaints, Mettler was entitled to recover $2,500 from the Frys, and that the Frys were entitled to recover $5,800 from Mettler; provided, however, that said amount, payable to each cross-complainant, should “become due and payable only in the event that and to the extent which” each defendant’s liability to plaintiffs “is discharged by payment to plaintiffs.” Apparently (as indicated by appellant’s brief and the memorandum of decision by the trial judge) the provisions of the judgment with reference to the cross-complaints were intended to designate the respective amounts of the judgment to be paid by Mettler and the Frys. The brief and memorandum indicate that the portion of the judgment for $8,300 damages (for removal of buildings and pumps) was apportioned so that (1) Mettler was required to pay $5,800 as damages (for buildings and pumps removed by the Frys), and to pay $2,795.45 as attorney’s fees; and (2) the Frys were required to pay $2,500 as damages (for the utility building and the pumps removed by Garner), and $1,204.55 as attorney’s fees.