Reynolds v. McEwen

• Decision Date: 06 June 1952
• Parties: REYNOLDS v. McEWEN. McEWEN v. REYNOLDS et al. Civ. 8053.
• Court: California Court of Appeals Court of Appeals

Page 961

244 P.2d 961

111 Cal.App.2d 540

REYNOLDS v. McEWEN.

McEWEN v. REYNOLDS et al.

Civ. 8053.

District Court of Appeal, Third District, California.

June 6, 1952.

Rehearing Denied July 3, 1952.

Fontaine Johnson, Sacramento, Kasch & Cook, Ukiah, John M. Roberts, for appellant.

Mannon & Brazier, Ukiah, for respondendents.

PEEK, Justice.

This is an appeal by defendant McEwen from a judgment in favor of plaintiff Reynolds in an action arising out of the lease of a sawmill located in Mendocino county.

W. A. Thayer, one of the cross-defendants, was the owner of certain real property in said county. The mill in question was located on a one acre parcel of this property. On July 20, 1946, Thayer leased the land together with the mill and equipment for a term of five years to E. C. Fredericks and one of the defendants herein, William E. Stover. The lease contemplated the removal of the old mill and the construction of a new one and contained appropriate provisions relative thereto. The lessees entered into possession of the property and immediately proceeded with said plans, contracting with appellant McEwen, a general contractor, for certain construction work. Fredericks and Stover were unable to meet their obligations to the lessor Thayer and the contractor McEwen. Thayer, upon being asked to consent to an assignment of Frederick's interest as colessee to McEwen stated the lease was non-assignable but said, 'if they could get a release from Fredericks and if McEwen and Stover would assume all the obligations as to inventory, the equipment, the property * * * (he) would be willing to make a lease with McEwen and Stover.' As suggested Fredericks executed a release and on March 1, 1947, the old lease was cancelled and a new lease, substantially identical as to terms, was executed to A. R. McEwen and William E. Stover as copartners. Construction of the new mill continued. On May 20, 1947, Stover assigned his interest to McEwen who thereafter completed the mill and began operations. On December 1, 1948, Thayer conveyed the real property and assigned his interest as lessor together with the rents to become due thereunder to plaintiff Reynolds. The monthly rental of $600 was paid only to and including October 31, 1948.

On June 6, 1949 respondent Reynolds filed his complaint against McEwen and Stover by which he sought to obtain the rent due according to the terms of the lease. McEwen cross-complained for damages alleged to have been suffered by him in attempting to operate the mill without certain equipment which was itemized in the inventory attached to the lease and for a refund of the rent previously paid by him. The cause proceeded to trial on the issues so formed and at the conclusion thereof the court found the allegations of the complaint to be true, giving judgment accordingly.

McEwen has now appealed, the essence of his contention being that Thayer as lessor and Reynolds as his successor breached the contract by failing to put defendant in possession of all of the property set forth in the inventory attached to said lease. In particular he contends the judgment must be reversed for the reason that the evidence is wholly insufficient to support the finding of the trial court that 'at all times since the date of said lease said defendants have been and now are in possession of said property described in said lease' since, the evidence, he says, conclusively shows that two lumber carriers listed in the inventory of equipment were never on the premises.

On the premise that the contract was breached in the above particular, appellant further contends that by accepting possession of a portion of the personal property he became liable only for the reasonable rental value of the property actually occupied by him and is entitled to recover damages suffered by him by reason of the failure of the lessor to place him in possession of all of the leased property.

The general rule as stated in 52 C.J.S., Landlord and Tenant, § 478, page 234, is that 'The duty of the landlord to deliver possession of the demised premises to the tenant, in order to entitle him to the payment of rent, does not extend to the point of requiring actual delivery, and his covenant is satisfied if there is no impediment to the tenant's taking possession or if the tenant is given a legal right of entry and enjoyment during the term.' See also Playter v. Cunningham, 21 Cal. 229; McCormick v. Marcy, 165 Cal. 386, 132 P. 449; Carty v. Blauth, 169 Cal. 713, 147 P. 949; Platner v. Vincent, 187 Cal. 443, 202 P. 655. It is also the rule that 'a lessee cannot relieve himself from liability for rent to accrue under an executed lease for a definite term either by refusing to take possession of the premises or by abandoning the premises after he has taken possession.' 32 Am.Jur. 389, sec. 475.

If Thayer, as lessor, performed the duty placed upon him by the above general rule, the finding that McEwen was in possession of the leased property must be sustained since it necessarily follows that under the stated rule and the record before us any failure to have taken actual corporeal possession must be deemed to have been his alone.

Nowhere in the record do we find any evidence of an impediment being placed in the way of appellant's taking possession of the premises; in fact the evidence shows without contradiction that McEwen was peacefully let into possession...