See Noe v. Cameron, supra. To like effect see: Nelson v. Meyers, supra; Colburn v. Shuravlev, supra; Farber v. Greenberg, 98 Cal.App. 675, 277 P. 534; Reams v. Taylor, 31 Utah 288, 87 P. 1089, 1091, 8 L.R.A., N.S., 436, 120 Am. St. Rep. 930, 11 Ann. Cas. 51; Hatzis v. United States Fuel Co., 82 Utah 38, 21 P.2d 862; Roberts v. Rogers, 129 Neb. 298, 261 N.W. 354, 356; Kitchen v. Landy, supra; Judge Hart's specially concurring opinion in Ripple v. Mahoning Nat'l Bank, 1944, 143 Ohio St. 614, 56 N.E.2d 289, at page 292; Lawler v. Capital City Life Ins. Co., supra; 32 Am. Jur., Landlord and Tenant, pp. 542, 543, sec. 672, pp. 526, 528, sec. 662; 52 C.J.S., Landlord and Tenant, sec. 417, subdiv. (4). Compare Doran v. United States Bldg. Loan Ass'n, 94 Mont. 73, 20 P.2d 835.
The appellant did not sign the original lease or any acceptance of such lease and entered into no new agreement to assume the obligations of the lease or to pay the rent. "In the absence of fresh contractual stipulations, there is no privity of contract between the assignee of the lessee and the landlord ( Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534],) and when a tenant holds under a mere naked assignment of a lease, his liability is, as to the landlord, limited to his occupancy of the premises and terminates with his abandonment of possession. ( Chase v. Oehlke, 43 Cal.App. 435 [ 185 P. 425].)
"Where a landlord is obligated to make repairs during the term, actual or constructive notice of the need for repair is necessary to put him in default on his obligation, unless he agreed to repair without notice, or has actual knowledge, or reasonable opportunity to acquire knowledge, of the defect." (See also McNally v. Ward, 192 Cal.App.2d 871, 884 [ 14 Cal.Rptr. 260]; Yazzolino v. Jones, 153 Cal.App.2d 626, 637 [ 315 P.2d 107]; Farber v. Greenberg, 98 Cal.App. 675, 682 [ 277 P. 534]; Harris v. Joffe, 28 Cal.2d 418, 424 [ 170 P.2d 454].) Speaking of a landlord's covenant to repair, Professor Prosser says in his Law of Torts (2d ed.), page 475: "The jurisdictions which find a tort duty usually construe the lessor's covenant, in the absence of an express provision to the contrary, to mean merely that he must repair only within a reasonable time after he has been notified of the dangerous condition, or has otherwise discovered it."
If the premises upon which these arguments are based were sound, the legal conclusion stated would undoubtedly follow. ( Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534]; Egan v. Dodd, 32 Cal.App. 706 [ 164 P. 17].) The difficulty with this argument is that the premises upon which it is based are unsound.
(15 Cal.Jur. 690.) To the same effect is Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534]. [2] The rule in this state is that the tenant takes the demised premises in the condition in which he finds them, and from that point on the lease measures the rights of the parties. ( Katz v. People's Finance etc. Co., 101 Cal.App. 552, 553 [ 281 P. 1097].) [3] A lease presents the aspects of a contract, and also that of a conveyance.
As we understand the argument of defendants with respect to the charge of negligence, it seems to rest upon the following claims: (1) that the relationship of lessors and lessees existed between defendants and the parents of plaintiffs; (2) that plaintiffs are in the some position with respect to defendants as their parents would have been if the parents had suffered the injuries; (3) that defendants were not liable to plaintiffs or their parents for injuries resulting from the defective condition of the rented premises in the absence of unusual circumstances not alleged in the complaint. ( Nelson v. Myers, 94 Cal.App. 66 [ 270 P. 719]; Priver v. Young, 62 Cal.App. 405 [ 216 P. 966]; Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534]); and (4) that it appears from the allegations of the second amended complaint that "the injuries were sustained as a result of a defective condition existing in the premises which had been rented by defendants to the parents of plaintiffs." It is thus apparent that defendants contend that defendants' duties toward plaintiffs began and ended with defendants' duties as lessors of the portion of the premises in which plaintiffs resided and that the complaint failed to show a violation of defendants' duties as such lessors.
Even an assignment of the leases would have created no privity of contract between appellant and respondents, but simply a privity of estate, which would have been completely and finally terminated by abandonment of the premises. ( Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534].) [2] The actions herein are predicated upon the theory that appellant became responsible under the original leases by assuming such leases and agreeing to pay the rentals therein reserved.
There is no privity of contract in such case between the lessor and the assignee. ( Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534].) The assignee is only liable for the rental or royalty during such time as he remained in possession of the property and received the benefits thereof.
In the absence of an application to amend the pleading, or some indication as to how the pleader intended to or could amend it so as to state a valid cause of action, there was no abuse of discretion in denying leave to amend by dismissing the action. ( Kleinclaus v. Dutard, 147 Cal. 245, 252 [ 81 P. 516]; Farber v. Greenberg, 98 Cal.App. 675, 685 [ 277 P. 534]; Mortensen v. Los. Angeles Examiner, 112 Cal.App. 194 [ 296 P. 927].) In truth, the plaintiff specifically declared that he was willing to stand on his supplemental complaint.
Under these circumstances, we cannot say the court abused its discretion in denying her the right to amend. ( Kleinclaus v. Dutard, 147 Cal. 245 [ 81 P. 516]; Dukes v. Kellogg, 127 Cal. 563 [ 60 P. 44]; Burling v. Newlands, 112 Cal. 476 [44 P. 810]; Hansen v. Carr, 73 Cal.App. 518 [ 238 P. 1048]; Murphy v. Murphy, 57 Cal.App. 182 [ 207 P. 43]; Whyte v. City of Sacramento, 65 Cal.App. 534 [ 224 P. 1008]; Bailey Trading Co. v. Levy, 72 Cal.App. 339 [ 237 P. 408]; Lapique v. Walsh, 50 Cal.App. 86 [ 195 P. 296]; Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534].) Indeed, we are unable to perceive, if the facts alleged in the complaint are true, how appellant can mend her complaint to state a cause of action against respondents at this late date, either upon the theory of an express or a resulting trust.