DocketNumber: L.A. No. 3570.
Citation Numbers: 140 P. 254, 167 Cal. 553
Judges: Sloss
Filed Date: 3/30/1914
Status: Precedential
Modified Date: 10/19/2024
The plaintiff brought this action to recover six hundred dollars, rent claimed to be due under a lease of a house at Montecito, Santa Barbara County. The lease, which is set out in full in the complaint, was for five years from *Page 555
the first day of January, 1905, at a monthly rental of one hundred dollars, and the amount here sued for is the rent for the last six months of the terms, i.e., July to December, 1909. The complaint, which alleges nonpayment of rent after July 1, 1909, was filed on June 18, 1912. In a former action for the recovery of the same sum, commenced in August, 1909, a judgment in favor of plaintiff had been reversed on the ground that the action, viewed as one for rent, was premature, such action not being maintainable in advance of the time when rent was payable under the lease. (Bradbury v. Higginson,
In the present action, the defendant filed an answer, in which he denied the plaintiff's general allegation of performance of all conditions precedent, and set up affirmatively the failure of plaintiff to comply with an alleged obligation to furnish water to the premises, by reason of which failure the defendant had rescinded the contract of lease. A demurrer to the answer was sustained, and defendant declining to amend, the plaintiff had judgment for the amount claimed. The defendant appeals from such judgment.
The answer, read as a whole, clearly shows that the denial of performance of conditions precedent, above referred to, was intended to be qualified by and to refer to the affirmative allegations relative to the failure to furnish water. Indeed, it is not suggested that there was any other condition to be performed by the plaintiff. The implied covenant to protect defendant's possession (Civ. Code, sec.
The matter thus pleaded was in substance as follows: At the time of the execution of the lease, it was mutually agreed that, in consideration of the payment of the rent, the plaintiff at all times during the terms of the lease would, at her own cost, keep the house and premises supplied with necessary water from plaintiff's water-plant. Without said agreement the defendant would not have accepted the lease. In reducing the lease to writing, the agreement to furnish water was by mutual mistake omitted. The premises had no other water supply. About June 29, 1909, the premises became uninhabitable *Page 556 for want of water, and continued to be without water until the eighteenth day of August, 1909. As soon as defendant ascertained that the premises were without water, he demanded of plaintiff that she furnish water, which she neglected and refused to do. Such neglect and refusal continued until August 17, 1909, when defendant elected to rescind said contract of hiring and to vacate the premises on account of plaintiff's neglect to furnish water, and on said date he served on plaintiff a written notice that he surrendered the premises and rescinded the lease. On the same day he did vacate the house and premises. The house and premises could not be used or occupied without water, and by reason of plaintiff's failure to furnish water, the consideration for defendant's agreement to pay rent from July 1, 1909, to August 17, 1909, absolutely failed. The contract of lease was prepared by plaintiff and her attorney, and defendant did not discover until August, 1909, that the written lease did not contain the term and condition orally agreed upon, to wit, that plaintiff should at her own cost furnish the premises with water from her plant.
One of the grounds of demurrer to the foregoing defense was that it is barred by the provisions of Subdivision 4 of section
Under the lease as written, the failure to supply water did not justify the defendant in abandoning the premises or refusing to pay rent. The writing did not impose upon the lessor any affirmative obligation in this regard. This was definitely established in the former action (
It seems entirely clear that, before any rescission or other defense can be based upon an agreement which should have been, but was not, made a part of the written lease, the writing *Page 557
must be reformed by the decree of a court of equity, or, if there be no formal decree of reformation, there must be a showing justifying such a decree. The defense really consists of two parts, i.e.: 1. A demand that the writing be reformed so as to express the true intention of the parties; and 2. A plea that the agreement has been rescinded for the failure of the plaintiff to perform it, as thus reformed. But since the agreement claimed to be rescinded is not the agreement contained in the writing executed by the parties, it was essential to the defense that a right of reformation be established. The reformation of contracts is a branch of the equity jurisdiction. Under the old system, where legal and equitable rights were administered in different tribunals, the equitable remedy would have had to be sought and obtained in a court of chancery in a suit instituted for that purpose. Under our procedure, however, equitable defenses may be interposed to legal causes of action, and a right to equitable relief, affecting the legal right asserted in the complaint, may be set up by way of answer. But if the matter set up be an equitable cause of action, the answer must contain all the averments essential to the statement of a cause of action as such. (Bruck v. Tucker,
In the case under consideration the plaintiff, in her demurrer, pleaded subdivision 4 of section
The defendant relies upon section
The opinion in the Gardner case contains, further, an expression to the effect that an action for the reformation of a contract is not barred so long as an action on the contract itself might be brought. If this be the correct rule, we do not consider it applicable to a case like the one before us, where the reformation is not merely incidental to the main relief sought, but is an essential prerequisite to the asking of any relief.
For the reasons stated, we conclude that the demurrer to the answer was rightly sustained.
The judgment is affirmed.
Shaw, J., Angellotti, J., Melvin, J., Henshaw, J., and Lorigan, J., concurred. *Page 560
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Pike v. Hayden , 97 Cal. App. 2d 606 ( 1950 )
Hart v. Gudger , 153 Cal. App. 2d 217 ( 1957 )
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Johnson v. Ware , 58 Cal. App. 2d 204 ( 1943 )