No. 173. xii. Special Contract, Completely Fulfilled. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of ... 187., at the defendant made his agreement in writing, under his hand and seal, of which the following is a copy [copy of agreement]. II. That the plaintiff has duly performed all the conditions thereof on his part. III. That on the ... day of ... .... 187., at the plaintiff demanded of the defendant payment of the sum of ...... dollars, in said contract mentioned. IV. That he has not paid the same. [Demand of Judgment.] 28. Partnership.-Where partners employed plaintiff, on condition that a certain portion of his wages should be retained till a certain sum had accumulated, when plaintiff should become a partner, and during the accumulation the firm dissolved, the plaintiff may sue on the special contract, or for work and labor: Adams v. Pugh, 7 Cal. 150. 29. Performance.-If the plaintiff undertakes to aver performance by setting out the facts showing performance, he may be held to aver them with certainty: Hatch v. Peet, 23 Barb. 575. As to averment of performance on a modified contract, see Smith v. Brown, 17 Barb. 431. No. 174. xiii. The Same, where the Contract was Fulfilled by an Assignee. The plaintiff complains, and alleges: I. That on the ..... day of defendants, in consideration of 187., at .......... executed and de livered in writing, under their hands and seals, a contract with one A. B., of which the following is a copy, and marked "Exhibit A." ........ II. That thereafter, and before the ..... day of said A. B. duly assigned the same, and all his rights under it, to the plaintiff. III. That up to the time of the assignment, the assignor had duly performed all the conditions of the contract on his part, and that since said assignment, the plaintiff duly performed all the conditions thereof on his part. IV. That on the..... day of.... 187., at.. the plaintiff demanded of the defendant payment of the sum of........ dollars, in said contract mentioned. V. That he has not paid the same. [Demand of Judgment.] [Annex Copy of Contract, marked “Exhibit A.”] 30. Performance, how Alleged.-One suing on a contract assigned to him may allege performance by saying that up to the time of the assignment the assignor had performed, on his part, all the covenants of the contract, and that afterwards the plaintiff fully performed the conditions imposed by the contract on the assignor: California Steam Navigation Co. v. Wright, 6 Cal. 258. Where plaintiff has bound himself to procure certain acts to be done by third parties, adding that those on whose behalf he acted have also performed, is unnecessary: Rowland v. Phalen, 1 Bosw. 43. 31. Relatives. For cases of services rendered to relatives: see Thornton v. Grange, 66 Barb. 507; and Neal v. Gilmore, 79 Pa. St. 421. .street] I. That on the...... day of........, 187., at... the plaintiff rented to the defendant, and the defendant hired from the plaintiff [the office No. at the rent of..... dollars, payable [monthly], on the first day of each [month]. II. That defendant occupied the said premises from the . . . day of . . . . . ..., 187., to the....day of..... .., 187.. III. That defendant has not paid........ dollars, being the [part of said] rent due on the....day of......., ...., 187.. [Demand of Judgment.] 1. Action. It seems that where a landlord elects to terminate a lease for non-payment of rent, and commences summary proceedings to recover possession, he is not entitled to recover for use and occupation from the time he terminated the lease until he obtained possession: Powers v. Witty, 42 How. Pr. 352; S. C. 4 Daly, 552. 2. Occupancy.-Actual continued occupancy is not necessary to be shown: Little v. Martin, 3 Wend. 220; Westlake v. De Graw, 25 Id. 669; Hajman v. Delihanty, 13 Abb. Pr. 388. ......... 187., at ...... The plaintiff complains, and alleges: I. That on the .... day of .... the defendant, entered into a covenant with plaintiff, under their hands and seals, a copy of which is annexed hereto, and made a part of this complaint, marked "Exhibit A" [or state the substance of the agreement]. II. That the defendant has not paid the rent for the month ending on the .... day of 187., amount ing to dollars. [Demand of Judgment.] [Annex Copy of Lease, marked "Exhibit A."] 3. Designation of Premises.--The premises may be designated by a simple reference to the lease, as in the above form: Dundas v. Lord Waymouth, Cowp. 665; · Van Rensselaer v. Bradley, 3 Den. 135. 4. Forfeiture. -The tenant cannot insist that his own act amounted to a forfeiture; if he could, the consequence would be that in every instance of an action of covenant for rent, brought on a lease, containing a provision that it should be void on the non-performance of the covenants, the landlord would be defeated by a tenant showing his own default at a prior period, which made the lease void: Doe dem. Bryan v. Banks, 4 Barn. & Ald. 409; Stuyvesant v. Davis, 9 Paige, 427; Canfield v. Westcott, 5 Cow. 270. At common law, there was no forfeiture of an estate for years, for the non-payment of rent: Chipman v. Emeric, 3 Cal. 273. By failure to pay rent when demanded, the contract under the lease is determined, and possession from that time is tortious: Treat v. Liddell, 10 Cal. 302. But the mere failure to pay will not make a forfeiture; a formal demand on the day it becomes due, is necessary: Gaskill v. Trainer, 3 Cal. 334. Where the record shows no demand of rent, there can be no forfeiture: Chipman v. Emeric, Id. 273. 5. Liability of Tenant.-The tenant is liable to payment until he has restored full and complete possession to the landlord, and his liability to pay the rent is not discharged by an eviction, unless under a title superior to the landlord's, or by some agency of the landlord's: Schilling v. Holmes, 23 Cal. 227. 6. Term of Lease.-If the tenant takes a receipt from his landlord, specifying the amount of rent paid, and the length of the term, to commence on the expiration of the lease, the new term will be for the time specified in the receipt. No new tenancy by implication arises in such cases: Blumenberg v. Myres, 32 Cal. 93. H. served upon his tenant B., who was occupying under him certain premises, under a rent of two hundred and fifty dollars per month, a notice to quit. Before the time at which, by the effect of the notice, the tenancy would have terminated, B., through a third person, proposed to H. to continue his occupancy, at a rent of three hundred dollars, with which proposal H. expressed himself satisfied, but did not in terms notify B. of his acceptance of it. B. continued to occupy the premises: Held, in an action by H. for rent at the rate of three hundred dollars per month, that it must be inferred that the subsequent occupation of B. was with the consent of H., on the basis of the proposal, rather than as a trespasser, and that plaintiff was entitled to recover: Hoff v. Baum, 21 Cal. 120. No. 177. The plaintiff complains, and alleges: I. That by a lease made between the plaintiff and the defendant, on the .... day of........, 187., at the defendant rented from the plaintiff, and the plaintiff demised and leased to the defendant the premises therein mentioned, at the monthly rent of dollars, gold coin, payable monthly in advance, on the .... day of each and every month, and that said indenture contained a covenant of which the following is a copy [copy covenant]. II. The the defendant, contrary to his covenant [state the breach], and that the plaintiff for that cause re-entered the premises, and took possession thereof by virtue of the authority given in said lease, and as agent of the defendant, and not otherwise, and that he made diligent efforts to re-let the premises for the defendant, but was unable to do so. III. That thereby the plaintiff lost the sum of dollars, for rent for the months of ........ and [Demand of Judgment.] 7. Surrender of Premises.—One of the most important duties of the tenant is to peaceably surrender the premises as soon as the tenancy has expired: Schilling v. Holmes, 23 Cal. 227. The surrender of a leasehold estate is the merger of the fee, but this will not defeat the rights of a third party intervening before the merger took effect: Gaskill v. Trainer, 3 Cal. 334. 8. Waiver of Forfeiture. The subsequent receipt of the rent by the lessor is a waiver of the forfeiture, unless the covenant was a continning covenant, or the lessor was ignorant of the breach: McGlynn v. Moore, 25 Cal. 384. The forfeiture of a lease is not waived by the lessor allowing the tenant to hold over without notice to quit, unless circumstances show a new term created: Calderwood v. Brooks, 28 Cal. 151. [TITLE.] No. 178. iv. Against Assignee of Lessee. The plaintiff complains, and alleges: 187., by a lease made between this plaintiff and one A. B., under the hand and seal of said A. B. [of which a copy is annexed], this ...... ......... plaintiff leased to said A. B., and said A. B. rented from the plaintiff certain lands, to have and to hold to said A. B. and his assigns, from the .... day of 187., for the term of ...... then next ensuing, for the [monthly] rent of ........ dollars, payable to this plaintiff on the [state days of payment], which rent said A. B. did thereby, for himself and his assigns, covenant to pay to the plaintiff accordingly. II. That thereafter, and during said term, to wit: on the day of ...... 187. [naming a day before the breach], all the estate and interest of said A. B. in said term, by an assignment then by him made, became vested in the defendant, who thereupon entered into possession of the demised premises. 187., III. That during the time the defendant was so possessed of the premises, to wit: on the . . . . . . day of ..... the sum of ...... dollars of said rent, for the month ending on that day [or otherwise], became due to the plaintiff from the defendant. IV. That he has not paid the same. [Demand of Judgment.] 9. Assignment.-In such cases the assignment need not be more specifically alleged: Van Rensselaer v. Bradley, 3 Den. 135; Norton v. Vultce, 1 Hall, 384. 10. Liability.-The liability of an assignee is confined to the term during which he holds the premises, by himself, or his immediate tenants: Astor v. Lamoreaux, 4 Sandf. 524. As to liability of one in possession without a valid assignment, see Carter v. Hammett, 12 Barb. 253; Ryerss v. Farwell, 9 Id. 615. The assignee of a lease may discharge himself from all liability under the covenants of a lease, by assigning over; and the assignment over may be to a beggar, a feme covert, or a person on the eve of quitting the country forever, provided the assignment be executed before his departure, and even though a premium is given as an inducement to accept the transfer: Johnson v. Sherman, 15 Cal. 287; citing 2 Platt on Leases, 416. 11. Non-Payment. It is sufficient to aver that the defendant has not paid the same: Dubois v. Van Orden, 6 Johns. 105; Van Rensselaer v. Bradley, 3 Den. 135; Holsman v. De Gray, 6 Abb. Pr. 79. 25 |