Fontana Industries, Inc. v. Western Grain & Fertilizer Co.

• Decision Date: 28 January 1959
• Citation: 334 P.2d 611,167 Cal.App.2d 408
• Court: California Court of Appeals Court of Appeals
• Parties: FONTANA INDUSTRIES, INC., a California corporation, Plaintiff and Appellant, v. WESTERN GRAIN & FERTILIZER CO., a corporation, Kern Valley Packing Co., a corporation, Oscar Rudnick and Mark Futerman, Defendants and Respondents. Civ. 5901.

Page 611

334 P.2d 611

167 Cal.App.2d 408

FONTANA INDUSTRIES, INC., a California corporation, Plaintiff and Appellant, v. WESTERN GRAIN & FERTILIZER CO., a corporation, Kern Valley Packing Co., a corporation, Oscar Rudnick and Mark Futerman, Defendants and Respondents.

Civ. 5901.

District Court of Appeal, Fourth District, California.

Jan. 28, 1959.

Rehearing Denied Feb. 27, 1950.

Trent G. Anderson Jr., Los Angeles, for appellant.

Thomas M. Eckhardt, San Bernardino, and Borton, Petrini, Conron & Brown, Bakersfield, for respondents.

MUSSELL, Acting Presiding Justice.

This is an action for unlawful detainer and for damages. The first amended complaint contains two causes of action. In the first cause of action plaintiff alleges, among other matters, that on or about November 1, 1954, plaintiff and defendant Western Grain & Fertilizer Co., Inc., entered into a written agreement wherein plaintiff, as owner, leased to said defendant approximately 60 acres of the property commonly known as Fontana Farms, in San Bernardino county; that the lease was for a period of five years at an agreed rental per year and lessee agreed to pay the taxes; that it was further agreed that '* * * in the event the lessee abandons the premises or should the lessee default in any of the covenants herein contained, the lessor at his option may reenter and take possession of the premises and remove all persons and property thereto, and at his option terminate this lease'; that it was further provided that lessor acknowledges that certain items of fixtures were sold to the Kern Valley Packing Company; that lessee warrants that it is entitled to remove such items as were sold to the Kern Valley Packing Company primarily including the feed mill on the leased premises, and lessor consents to the removal of such items thus sold at any time during the terms of the lease. It is further alleged that defendant Western defaulted in the payments in the sum of $8,625; that plaintiff is informed and believes and therefore alleges that defendants have abandoned said premises in their entirety, and did so abandon said premises on or about the 30th day of March, 1956; that there are certain buildings, property of lessee, now located on said premises, consisting of a grain elevator building and of certain incidental structures and fence posts; that defendant Western has not removed said buildings and that the cost of removing them is the approximate sum of $15,000; that in said lease it is provided that lessee agrees to remove all rubbish from the premises; that the aforesaid grain elevator has partially burned and is therefore useless and that the expense of removing it is approximately $15,000.

The second cause of action, which relates a transaction antedating the foregoing by several years, is against the defendants Kern Valley Packing Company and Oscar Rudnick. Plaintiff alleges that on or about November 24, 1951, plaintiff was the owner of all the fixtures, buildings and equipment located on the real property described in the first cause of action; that plaintiff's assignors entered into a written agreement of sale with defendant Kern whereby said defendant purchased the fixtures located on said premises, including a grain elevator, grinding mill, with hog pens, runways and fence posts; that in said agreement defendant Kern agreed to accomplish the removal of all of said improvements within five months from the close of escrow and to leave the premises in an orderly and clean condition; that escrow was entered into between the parties, the purchase price of said buildings was paid and the escrow was closed on or about February 5, 1952; that more than five months have gone by since the close of said escrow, but defendant Kern has failed and neglected to remove the grain elevator and certain fence posts and other buildings incidental to said elevator, and that plaintiff was damaged thereby in the sum of $15,000.

The prayer of the complaint is for judgment against Western for unpaid rental and personal property taxes, for restitution and possession of the premises, for attorney's fees, and for $15,000 for cost of removal of...