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District Court of Appeal, Second District, Division 2, California.

YATES v. REID et al.*

Civ. 17676.

Decided: June 13, 1950

Arthur T. Stewart, Los Angeles, for appellant. Albert E. Wheatcroft, Los Angeles, for respondents.

Plaintiff has appealed from that portion of the judgment that he take nothing from defendants on his complaint for damages alleged to have been suffered by reason of defendants' abandonment of a lease. Defendants have appealed from that portion of the judgment that they take nothing on their cross-complaint. The latter appeal had not been prosecuted and will be dismissed.

By an agreement of lease dated September 28, 1945, plaintiff leased to defendants for the term beginning October 15, 1945, and ending January 14, 1950, a parcel of real property with the improvements thereon at a rental of $300 a month for the first three months and $450 a month thereafter.

Defendants went into possession of the property and continued to occupy it until June 15, 1947, when they vacated the premises. The rent was paid as provided in the lease to and including June 14, 1947. One or a few days after the date of abandonment plaintiff went into possession of the property and continued to occupy it until April 7, 1948, when he leased it to one Martha Moore at a monthly rental of $300 for the remainder of the term of defendants' lease and two months in addition. On the same day plaintiff served a notice on defendants to the effect that he had re-let the premises at the monthly rental mentioned and demanding payment from defendants of the difference between the amount called for by their lease and the amount which Mrs. Moore had agreed to pay.

On May 20, 1948, plaintiff served a second notice on defendants declaring their lease to be terminated ‘as of date hereof’ upon the ground that they had abandoned the property on June 15, 1947, and again demanding payment of the difference between the Yates and the Moore leases for the remainder of defendants' term.

As one ground for reversal plaintiff contends that the findings are conflicting and inconsistent. The court made a specific finding that on and after June 15, 1947, plaintiff, without notice to defendants, entered upon the leased premises, took possession thereof and operated the hotel and other appurtenances ‘for and on his own account and benefit’; that plaintiff's re-entry was not for the purpose of diligently seeking new tenants or protecting or preserving the premises and was not for the benefit of defendants or on their account; that by such re-entry and possession plaintiff accepted the surrender of the lease and by virtue thereof the lease was terminated on June 15, 1947; that the leasing of the premises to Martha Moore was not on account of or for the benefit of defendants but was on plaintiff's own account and benefit.

By a general finding that court found that the allegations contained in the answer of defendants and in the separate defense therein set forth are true except that it is not true that plaintiff is indebted to defendants in any sum whatsoever. The defense referred to in the last mentioned finding alleges that on June 15, 1947, plaintiff re-entered the premises and operated the hotel and other appurtenances on behalf of defendants until April 1, 1948. This allegation, which is included in the general finding that the entire defense is true, is in conflict with the specific findings above set forth to the effect that plaintiff's possession was on his own account.

The general rule is that where the determination of material matters, one way or the other, is essential to the correctness of the judgment, and findings on such matters are inconsistent, the judgment cannot be upheld. Another rule as firmly established is that when there are specific findings as to a particular matter in issue and also a general finding to the effect that all allegations in a certain paragraph or cause of action relating to the same matter are true or untrue, and such findings are inconsistent with one another, the specific findings will control. Wilson v. Wilson, 76 Cal.App.2d 119, 129, 172 P.2d 568; Wood v. Keller, 72 Cal.App.2d 14, 17, 163 P.2d 904; Lobb v. Brown, 208 Cal. 476, 481, 281 P. 1010; Wallace Ranch Water Co. v. Foothill Ditch Co., 5 Cal.2d 103, 118, 53 P.2d 929. Therefore the general finding will be disregarded and the special finding of fact that the plaintiff re-entered the premises on his own account and not for the benefit of defendants, and that by his action he accepted surrender of the lease as of June 15, 1947, will prevail.

Plaintiff maintains that the findings are not supported by the evidence. The lease contained a provision that no re-entry of the property by the lessor shall be construed as an election on his part to terminate the lease unless written notice to that effect is delivered to the lessee. Plaintiff testified that after he took possession of the premises he applied for a license for a lunchroom in July. The license was issued on August 11, 1947, authorizing plaintiff to transact the business of trailer camp, hotel and lunchroom. He rented trailer space and cabins to travelers, served sandwiches and soda water, which had not been served by defendants while they occupied the property, he procured a beer license, which defendants had not had, he installed a sign ‘vacancies' in front of the property, and continued so to operate the business until he leased it to Mrs. Moore on April 7, 1948. He did not serve a notice on defendants that he was taking possession on their account until the day on which he executed the lease to Mrs. Moore and did not, until that date, make a demand on defendants for payment of rent. This evidence amply sustains the finding that when plaintiff re-entered the property he took possession and operated it on his own account and not on account of defendants.

Judgment affirmed. Defendants' appeal is dismissed.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.

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