Opinion
Rehearing Denied Nov. 21, 1929
Hearing Granted by Supreme Court Dec. 19, 1929
Appeal from Superior Court, Alameda County; John J. Allen, Judge.
Action for rent by Phillips & Hollman, Incorporated, against Peerless Stages, Incorporated. From the judgment, plaintiff appeals. Affirmed.
COUNSEL
C. Morton Booth, of Los Angeles, for appellant.
Preston Higgins and Alfin N. Nelson, both of Oakland, for respondent.
OPINION
LAMBERSON, Justice pro tem.
On February 27, 1925, plaintiff, who is appellant herein, leased to assignors of the defendant and respondent, certain portions of a building in the city of San Jose, known as the Auzerais Building, for the term of ten years, beginning May 1, 1925, for a total rental expressed in the lease, payable in advance in specified monthly installments. The lease provided in part as follows:
"Said lessees hereby agree that if the rental hereunder reserved be not paid within five (5) days after the same becomes due and payable hereunder, or if default be made in the performance of any of the other covenants on their part herein contained, and shall continue for five (5) days after written notice thereof given to the lessees by the lessor, such default or breach shall, at the option of the lessor, work a termination of this lease to the same extent and with all the legal incidents as if the term hereof had expired by efflux of time, and it shall then be lawful for the said lessor, his agent, or agents, to reenter the said premises and remove all persons therefrom and to repossess himself of said premises as of his original estate. ***
"Said lessees further agree that should they vacate or abandon the demised premises prior to the expiration of the term hereunder provided for, or should said lease prior to the said time be determined in any manner in these presents agreed upon, except by reason of the total destruction of the said premises, or by cancellation by agreement in writing, or by the lessees for cause, and the said lessor shall enter in and upon said premises and take possession thereof, notwithstanding the same the said lessees shall not be released from liability for the full rental herein called for, but said lessor may let said premises, in whole or in part, and upon such terms as his judgment may dictate (the lessor, however, agreeing to make diligent effort to realize the best obtainable rent therefor) and the said lessees shall be liable unto the said lessor, for the balance of the full term hereof, for the difference between the said rental procured by said lessor and the rental herein called for.
"The lessor may at any time during the term of this lease terminate and end this lease upon six (6) months’ written notice to the lessees, sent by registered mail and addressed to the lessees at the demised premises, etc."
Respondent, as assignee of the lessees, went into possession of the premises on May 1, 1925, and continued in possession until December 31, 1925. The respondent having defaulted in payment of the rent due December 1, 1925, appellant, on December 15th, caused to be served upon the respondent a written notice, stating in substance that respondent was thereby notified to immediately vacate the premises occupied by respondent for its failure to pay the rent as provided in the lease, and in the event of its failure to vacate the premises, it would be necessary for appellant to commence legal proceedings for possession. Demand was made in the notice for the rental then due for the month of December.
Respondent continued in default and vacated the premises on December 31, 1925. Appellant then went into possession and made diligent effort to re-rent the premises, and did re-rent them up to the 1st day of June, 1927.
At some time after December, 1925, the appellant commenced an action against the respondent in the superior court, by which it sought to recover the rent due under the lease for the month of December, 1925, and also such rent as would accrue during the remainder of the term. The trial court, on February 23, 1927, caused judgment to be entered in favor of the plaintiff for the rent due for the month of December, 1925, but as to all other matters found that the action had been prematurely commenced.
On May 12, 1927, the appellant caused written notice to be served upon the respondent, notifying the latter in substance that the lease was thereby canceled and terminated, as of the 1st day of June, 1927, in accordance with the covenants and conditions of the lease, for the reason that respondent had paid no rent since December 31, 1925.
Respondent was further informed by said notice that the lessor had used all due diligence to rent the premises for such rental as could be obtained, and that the greatest amount of rental that had been obtained from January 1, 1925, to date of notice, was the sum of $2,297.50; that the difference between the amount so obtained and the amount due the lessor up to the first day of June, 1927, was $8,002.50, for the payment of which sum demand was made in said notice. On June 11, 1927, appellant filed its complaint in the action now before the court, seeking to recover the said sum of $8,002.50, after alleging that the appellant had rented the said premises for the benefit and on account of said defendant and had collected the sum of $2,297.50 as rentals. The trial court found that the action was prematurely brought, and gave judgment that appellant take nothing as against respondent. From said judgment this appeal has been taken.
It appears from the evidence that respondent gave no notice of abandonment or repudiation of the lease, and the trial court found that the respondent vacated and quit the premises pursuant to the notice from appellant, and not otherwise.
It is apparent that the first notice was given in accordance with the provisions of the lease, and the lessor rented the premises, according to its own statement, in accordance with the provisions of the lease and for the benefit of the respondent. No notice of termination or cancellation of the lease was served upon respondent prior to May 12, 1927. The appellant has sought to justify a recovery of the sum named in the complaint for the period ending June 1, 1927, by serving such notice of cancellation and termination of the lease upon the respondent, and urges that such action on its part had the effect of absolutely canceling the lease and terminating the rights of the parties hereunder.
So far as appears from the records in the case, the respondent voluntarily surrendered possession of the premises in December, 1925, and there was no evidence that it surrendered anything under the lease except the possession of the premises, or expressed in any manner an intention or desire to consider the lease at an end. Under these conditions, it cannot be said that the respondent abandoned or surrendered its leasehold. It was necessary that there be an acquiescence in an abandonment on the part of both parties before a surrender could be accomplished. "A surrender is the yielding up of an estate for life or years to the reversioner or remainderman. Under the statute of frauds, it can be done only by express consent of the parties in writing, or by operation of law, when the parties do something which implies that both have consented." Welcome v. Hess, 90 Cal. 507, 512, 27 P. 369, 370, 25 Am.St.Rep. 145.
As already appears, after December, 1925, the appellant continued to rent the premises for the benefit of the respondent. To change this condition it was necessary that both parties should manifest their intention to consider the lease at an end.
In the case of Welcome v. Hess, supra, 90 Cal. at page 513, 27 P. 371, the court said:
"The term is an estate in lands. The tenant, subject to the covenants of his lease, is the owner for the term. If he leaves the demised premises vacant, and avows his intention not to be bound by his lease, his title still continues, unless the landlord has accepted the offer of surrender. The landlord has no more right to the possession or to lease than a stranger. ***
"The tenant cannot abandon his title; and notwithstanding he has gone out, unless the surrender is accepted, that continues. It is his right to resume possession at any time during his term."
A repudiation of a lease or an abandonment of the premises by a lessee does not operate at once to mature all the rent reserved so as to enable the lessor to recover, not only installments already accrued, but also those to accrue in the future. Bradbury v. Higginson, 162 Cal. 602, 123 P. 797; Oliver v. Loydon, 163 Cal. 124, 124 P. 731; Melone Co. v. Acquistapace, 73 Cal.App. 199, 238 P. 734; Syrett v. Strickland, 86 Cal.App. 623, 261 P. 484.
From the opinion in the case of Bradbury v. Higginson, supra, the following language, appearing at page 604 of 162 Cal., 123 P. 798, has been often quoted: "That a landlord may have an action for damages for breach of contract when a tenant abandons his lease is not questioned by any of the authorities. His damages, however, in that event, are to be ascertained in a particular way. Where a lease is repudiated and the premises abandoned, the landlord may pursue one of two courses: He may rest upon his contract and sue his tenant as each installment of rent, or the whole thereof, becomes due; or he may take possession of the premises and recover damages, which damages will be the difference between what he may be able to rent the premises for and the price agreed to be paid under the lease. Where he sues for damages, he cannot in advance recover the full price to be paid for the unexpired term, but the amount of his recovery is limited as just indicated. In re Bell, 85 Cal. 119, 24 P. 633; Respini v. Porta, 89 Cal. 464, 26 P. 967, 23 Am.St.Rep. 488; Massie v. State Nat. Bank, 11 Tex.Civ.App. 280, 32 S.W. 797; Jones on Landlord & Tenant, § 140. It is said by Mr. Gear, in his work on Landlord & Tenant: ‘If the premises are abandoned without cause, the landlord may elect to leave them vacant and recover rent, or enter and determine the tenancy; but he cannot both enter and treat the contract as subsisting. *** Under the Roman Civil Law and in Louisiana, the tenant who abandons during the term may be sued at once for the whole rent of the term.’ From the decision in the case of Respini v. Porta, supra [ 89 Cal. 464, 26 P. 967, 23 Am.St.Rep. 488], we quote: ‘But we cannot support him in his contention that because the defendant, against his (plaintiff’s) wishes and without right, abandoned the property, he is entitled to recover the full amount provided for by the terms of the lease to defendant. Our code provides that "for the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom." Civ.Code, § 3300. *** In cases of this kind the landlord is not entitled to recover for rent of the premises after the abandonment of them by the defendant, but has compensation for the injury, and his measure of damage is the difference between the rent he was to receive and the rent actually received from the subsequent tenant, provided there has been good faith in the subsequent letting’ "— citing cases.
We are of the opinion that the principles above stated are decisive of the instant case. Having elected to take possession of the premises and re-rent them for the benefit of respondent, the appellant must pursue the remedy outlined in the opinion last quoted, and which has been affirmed frequently in more recent decisions.
The amount of damage suffered by appellant cannot be recovered piecemeal, or prior to the end of the term specified by the lease, because until that time arrives, it cannot be known what credits for rentals must be allowed respondent, as lessee, and the amount of damage suffered by the appellant cannot be accurately computed until those credits are known.
We are of the opinion that the judgment should be affirmed. It is so ordered.
We concur: NOURSE, Acting P.J.; STURTEVANT, J.