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].)
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.
Discussion of these rules in their relation to liability for injury suffered through collapse of a railing is to be found in De Motte v. Arkell, 77 Cal.App. 610, 621 [ 247 P. 254], and Hassell v. Denning, 84 Cal.App. 479, 481, 482 [ 258 P. 426]. For a general exposition of the law on the subject, reference may be made, also, to Daley v. Quick, 99 Cal. 179, 183 [33 P. 859]; Smelser v. Deutsche Kirche, 88 Cal.App. 469, 473 [ 263 P. 838]; Nelson v. Myers, 94 Cal.App. 66 [ 270 P. 719]; Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534]. [6] Throughout the trial the plaintiffs were insistent in impressing upon the judge and the jury that the defect in the railing was so effectually concealed beneath the bark as to escape their notice; and there being no evidence before the court to charge Mrs. Wright with notice any more than the plaintiffs themselves, she was exempt from liability and entitled to a verdict at the direction of the court.
[1] "In the absence of fraud, concealment, or covenant in the lease, a landlord is not liable to a tenant for injuries due to the defective condition or faulty construction of the demised premises." (15 Cal. Jur. 704; Gately v. Campbell, 124 Cal. 520 [57 P. 567]; Toner v. Meussdorffer, 123 Cal. 462 [56 P. 39]; Daley v. Quick, 99 Cal. 179 [33 P. 859]; Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534]; Nelson v. Myers, 94 Cal.App. 66 [ 270 P. 719]; Priver v. Young, 62 Cal.App. 405 [ 216 P. 966].) It is not sufficient to show that by the exercise of reasonable care the landlord could have discovered the defective condition, but in order to hold him liable it must appear that he knew of such defect.
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.
"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."
(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.
The opinion then goes on to discuss the deficiencies or the defects in the complaint. In Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534], this court, on passing upon the failure of a party to ask leave to amend, held as follows: "Appellant also complains that the trial court abused its discretion in denying him the right to amend. The record does not show in what manner appellant desired to amend, what changes or additions he proposed to make to his complaint.
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.
But with no record to support the argument we cannot say that error was committed. ( Stewart v. Douglass, 148 Cal. 511, 512 [ 83 P. 699]; Philbrook v. Randall, 195 Cal. 95, 104 [ 231 P. 739]; Duvall v. White, 46 Cal.App. 305, 307 [ 189 P. 324]; Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534, 538].) But aside from the absence of affirmative evidence of error in this respect we are unable to perceive how the appellant could amend his complaint to state a cause of action against any of these respondents if the facts alleged in his complaint be true.