McComish v. Kaufman

ELLISON, P. J., pro tem. Plaintiff brought this action to recover possession of 235 opera-chairs, a lot of scenery, stage *508 fixtures, and an electric sign. Prom a judgment in favor of defendant the plaintiff appeals. On the twelfth day of March, 1912, the plaintiff gave to the defendant a lease of a room in a building in the town of Colusa, known as the “Herald Building,” to be used for the purpose of moving-picture entertainments. At the time the lease was executed, the defendant was in possession of the premises and had been for some time under prior contract with plaintiff. The lease was for a term ending December 31, 1913, with the option to the defendant of a two years’ extension. The rental was thirty-five dollars per month. At the date of the lease there was certain personal property in the room consisting of chairs, scenery, and other articles used in the moving-picture business, which concededly belonged to the defendant. The lease stated that this furniture and fixtures were pledged to the plaintiff for the faithful performance of the conditions of the lease. Defendant exercised his option and held under this lease until December 31st, 1915. Thereafter he held the premises and conducted the moving-picture business in said room as a tenant at will or from month to month without any written lease until August 5, 1918, at which time plaintiff served upon him a written notice to vacate within thirty days. Upon receiving said notice, defendant had an interview with plaintiff and informed him that thirty days was too short a time within which to move his fixtures and furniture and asked for a new lease for a longer term than thirty days, and stipulated that if such additional time were given, he would pay an increased rental, and remove all his property, including the property here involved, before the expiration of such new lease. As a result of this interview the plaintiff gave to the defendant a new lease of the premises. This lease was dated August 12, 1918. The property leased was described as “that room known as the ‘Gem Theater’ located in the Herald Building, in the town of Colusa. ’ ’ The term was for one month beginning the first day of September, 1918, and ending the thirtieth day of September, 1918. The rental for the month was sixty dollars. No mention was made in the lease of the fixtures or furniture. Within the life of the new lease the defendant removed from the building all the property, the subject of this litigation. *509 The appellant’s position may he fairly stated as follows: When the lease of August 12, 1918, was executed, the fixtures, which had been put in the building during the existence of a prior lease and not removed before its expiration, had become the property of the plaintiff, and the new lease, not providing for their removal by the tenant, he had no right to take them from the building. In support of his position, he quotes from Wadman v. Burke, 147 Cal. 354, [3 Ann. Cas. 330, 1 L. R. A. (N. S.) 1192, 81 Pac. 1013], as follows: “And it follows that whatever was a part of the freehold when the lessee accepted and began his occupation under the new lease must be delivered up at the end of the term, and cannot be severed on the ground that it was put in as a trade fixture under a previous lease which has expired. The failure of the lessee to exercise his right to remove during the former term, or to reserve it in his new contract, precludes him from denying the title of his landlord to the estate,' and the fixtures annexed, which have become part of it.” The decisions present some apparent conflict upon the matter set forth above. Thus, it was held in Woods v. Bank of Hayward, 10 Cal. App. 93, [106 Pac. 730], that a holding over from month to month after the expiration of a written lease amounted to a continuance of the original holding and that the tenant’s right of removal was not lost. A petition for hearing by the supreme court was denied. [1] Conceding, for the purposes of the argument only, that the law is as claimed by appellant, still after the original term has expired, the plaintiff could waive the right claimed and could by contract grant to his tenant the right to remove the fixtures during the new term which expired September 30, 1918, and if he did so, the removal by defendant would be a legal act. “Anyone may waive the advantage of a law intended solely for his benefit.” (Civ. Code, sec. 3513.) [2] In finding IX is this language: “Plaintiff did make, execute, and deliver to defendant his certain agreement in writing whereby he did let and lease to the defendant that room known as the ‘Gem Theater’ located in the Herald Building upon the thirty-first day of September, 1918 (?) (twelfth day of August [?]) at an increased rental and plaintiff then and there expressly agreed that defendant *510 should have thirty days in addition to the time given by said prior lease and notice during which defendant could and should remove all property from the room occupied by the defendant and known as the ‘Gem Theater’ and said defendant so agreed to remove said property before September 31, 1918, and said defendant so agreed and did pay said increased rental and prior to September 31, 1918, did remove said property.” This finding, in connection with the others, is sufficient to support the judgment, and if it is to stand, the judgment must be affirmed. Counsel for appellant attacks it upon the ground that it is not supported by the evidence. The evidence in the record amply sustains the finding. The defendant testified: “I told Mr. McComish when he handed me this notice, ‘Isn’t that rather short time for me to move out? Isn’t that rather short notice for me to get the things moved out? This is a mighty short time to move all of this furniture and fixtures and get everything out immediately. It would be impossible to do it in thirty days; ’ and he said: ‘Well, I will see about it,’ and a few days afterward he came and said: ‘ I am willing to sign up an agreement that you have another month.’ Q. For what purpose? A. I should have another month to get out my stock. Q. And did you sign such an agreement? A. Yes, and he charged me ten dollars a month more for the privilege of giving me thirty days of getting my stuff out.” It is true the plaintiff denied this conversation, in part, at least. His testimony, at most, only raises a conflict, but does not alter the fact that the record contains sufficient evidence, if accepted by the court, to sustain the finding. The court accepted it and its action is binding on this court. [3] Counsel raises the point that the evidence of plaintiff above quoted is inadmissible, because it was parol evidence introduced for the purpose and had the effect of adding to the terms of a written contract. This evidence was admitted without objection and its admissibility cannot be questioned for the first time in this court. “Parties who permit a fact to be proved by incompetent evidence, without objection, waive all question of inadmissibility. This is true even of the statute of frauds and as to witnesses ‘incompetent to testify.’ ” (Walberg v. Underwood, 39 Cal. App. 748, [180 Pac. 55].) *511 “Conceding now that the contract declared on was void, by reason of the statute of frauds, because it was verbal, still, as no objection was made by plaintiff to the evidence when offered, it must be held that the right to invoke the statute of frauds was waived by the appellant, and it cannot now be invoked in this court as a reason why the judgment should be reversed or a new trial granted. The defense of the statute of frauds can be waived, and that it was waived by the plaintiff in failing to object at the time to the parol evidence when offered, we think there can be no doubt.” (Nunez v. Morgan, 77 Cal. 427, at p. 433 [19 Pac. 755].) The finding of the court that the plaintiff for an increased rental agreed that plaintiff might have until September 30, 1918, to remove the property in dispute, being supported by the evidence, is decisive of the case, and renders a discussion of other points unnecessary. The judgment is affirmed. Burnett, J., concurred.