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District Court of Appeal, First District, Division 1, California.


Civ. 10737

Decided: June 07, 1939

Daniel R. Shoemaker and Dean Cunha, all of San Francisco, for City of Paris Dry Goods Co. Dinkelspiel & Dinkelspiel and David K. Lener, all of San Francisco, for Beckett.

Plaintiff and defendant have each appealed from a judgment entered in the above-entitled cause wherein plaintiff, Dr. Lawrence G. Beckett, recovered damages against the City of Paris Dry Goods Company, a corporation, for unlawful eviction, and a further amount of $11.03 as a balance of account due him. Defendant's appeal is from the whole of the judgment; plaintiff's appeal is from that part of the judgment wherein and whereby the trial court refused to grant certain items of damage.

The plaintiff, Lawrence C. Beckett, an optometrist, who will be referred to hereinafter for the purpose of convenience as Dr. Beckett, entered into a three-year agreement with the defendant corporation (for the same reason hereinafter referred to as the City of Paris), to operate, manage and direct a first-class optometry concession in the defendant's department store. The space to be occupied was to be designated by the City of Paris. The department was to be operated under its rules and regulations, and the proceeds of the business were to be delivered at the close of each day to its cashier. On the fifteenth day of each month a statement was to be rendered by the City of Paris to Dr. Beckett showing sales, offsetting advertising and other costs, and if a balance appeared in favor of Dr. Beckett a check in such amount was to accompany the statement. The ninth paragraph of the agreement provided: “The second party cannot assign this lease or any interest therein, without the written consent of the first party.” About ninety days prior to the termination of the agreement the City of Paris gave notice of cancellation with a request to vacate, giving as a reason therefor claimed infractions of paragraph seven of the agreement, which contained a clause, in effect, that all moneys received by Dr. Beckett should be turned in at the close of each day to the cashier of the City of Paris. The date to vacate was subsequently postponed for a period of twenty-four days, and upon Dr. Beckett's failure to vacate on such date the City of Paris caused his property to be removed from the premises.

The issue raised on appeal by the City of Paris is whether the agreement is a license or a lease. It contends that the agreement is a mere license and that Dr. Beckett's violation of its terms constituted a breach of the agreement and gave the City of Paris the right to terminate the license and exclude Dr. Beckett from access to its premises. Dr. Beckett contends that the instrument established the relationship of landlord and tenant.

Its purpose was lawful and must therefore be interpreted from the contract itself to give effect to the mutual intention of the parties at the time it was executed. Civ.Code, §§ 1636, 1639, 1643. It may be conceded that the instrument provided for a definite rental and for its payment for an agreed period of time. Levin v. Saroff, 54 Cal.App. 285, 201 P. 961. The only essential question in dispute is the sufficiency of the description of the space and the boundaries of the property to be occupied. The agreement provided sole and exclusive right to conduct an optometry business within a space “to be designated” by the City of Paris, the space to be delivered in “good, tenantable condition”. The use of the words “cannot assign this lease”, “tenantable”, “space demised”, etc., is a circumstance which may indicate the intention of the parties, but it is not entirely determinative of the question of whether the instrument is a license or a lease. Morris v. Iden, 23 Cal.App. 388, 138 P. 120; Tiffany, Landlord and Tenant, sec. 7; R.H. White Co. v. Jerome H. Remick & Co., 198 Mass. 41, 84 N.E. 113. The supervisory powers reserved and the restrictions imposed may throw light upon the intention of the parties, but they are not controlling. No doubtful words in the agreement require legal interpretation. The true test is whether the one occupying the space designated has exclusive possession; if so, the agreement is a lease. If the instrument simply confers a privilege to occupy, it is a license. Shaw v. Caldwell, 16 Cal.App. 1, 115 P. 941; Dean v. Brower, 119 Cal.App. 412, 6 P.2d 580; Eastman v. Piper, 68 Cal.App. 554, 229 P. 1002.

This is not a case of a defective description which may be cured by the lessor placing the lessee in possession for the full term of the written agreement; on the contrary, the lessor reserved the right to change the location at any time during the life of the agreement. In the cases cited by Dr. Beckett the lessee was able definitely to locate and take possession for the term of the contract (Olcovich v. Deremberg, 27 Cal.App. 194, 149 P. 375; Baranov v. Scudder, 177 Cal. 458, 170 P. 1122), or a definite space in an area was designated subject to a change in location within a stipulated period (In re Owl Drug Co., D.C., 12 F.Supp. 439), or exclusive possession for a definite period of a maximum space was designated (Mehlman v. Atlantic Amusement Co., 65 Misc. 25, 119 N.Y.S. 222), or the lessee paid a bonus plus a stipulated sum per front foot (Herman v. Rohan, 37 Cal.App. 678, 174 P. 349), or the locality was specified on a blue print attached to the agreement. Williams v. Hylan, 126 Misc. 807, 215 N.Y.S. 101. In R.H. White Co. v. Jerome H. Remick & Co., supra, the agreement provided for a balcony location substantially forty feet in length to be used for the business of selling sheet music. The court held the agreement to be a license. In the present case the agreement simply conferred an exclusive but revocable right from the City of Paris to personally operate an optometry department. It was based upon trust and confidence in business acumen and integrity. The concession was a part of the general business of the City of Paris to be conducted on a space, designated by it, that could be relocated or enlarged or decreased without the consent of Dr. Beckett. Gerould Co. v. Arnold Constable & Co., 1 Cir., 65 F.2d 444; Marcelle, Inc., v. Sol. & S. Marcus Co., 274 Mass. 469, 175 N.E. 83, 74 A.L.R. 1012. Under the terms of the agreement we cannot hold this instrument to be a lease.

The complaint alleges that the ejection for which damages are asked was accomplished through force and violence. The evidence shows, perhaps, some personal violence by the agents of the City of Paris several weeks prior to the eviction, but none upon the date that Dr. Beckett's furniture and effects were removed from the premises. Plaintiff prayed for “loss of profit”, “injury and loss of good will”, “exemplary damages” and for “costs of removal”. If Dr. Beckett did not have an exclusive privilege to the possession of the property under a lease contract, the City of Paris had a right for infractions of the agreement to terminate his occupancy. We are not concerned here with an action for breach of an agreement, such as a license, for a stated period of occupancy for which injunction proceedings might apply, but rather with an action for damages for eviction under a claimed lease contract. The judgment for actual damages must be set aside.

Plaintiff's appeal is taken from that part of the judgment assessing the amount of damages on the first cause of action resulting from the alleged unlawful eviction. The determination that the relationship of landlord and tenant under a lease contract did not exist precludes plaintiff from damages for the eviction. The subject of this appeal is moot and hence will be dismissed.

The second cause of action alleges that the defendant became indebted to plaintiff in the sum of $11.03 for money had and received. In the judgment this amount is added to the sum assessed as actual damages. The defendant in its brief does not attack the correctness of this amount. Accordingly that part of the judgment, which is based on the second cause of action, will stand; the judgment in so far as it covers the first cause of action is reversed.

WARD, Justice.

I concur: KNIGHT, Acting P.J.

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