JOHNSON v. HAPKE

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

C. Samuel JOHNSON, Plaintiff and Respondent, v. Emma L. HAPKE et al., Defendants and Appellants.

Civ. 24473.

Decided: May 18, 1960

Benjamin F. Kosdon, Ventura, for appellants. William T. Selby and Glenn C. Garman, Ventura, for respondent.

Appeal is taken from a judgment in an unlawful detainer action, filed pursuant to section 1161a, subd. 4, Code of Civil Procedure, finding plaintiff is the owner and entitled to possession of certain real property located in the city of Ventura, California.

The evidence discloses that in August of 1958, C. Samuel Johnson, plaintiff herein, loaned defendant and her husband, Raymond Hapke, the sum of $10,000. This loan was evidenced by a promissory note payable in monthly installments. The note was secured by a deed of trust covering the real property which is the subject of this action. This deed of trust was subordinate to a deed of trust on the same property securing an obligation of defendant and her husband to a corporate lender. The note secured by the first deed of trust was in the approximate sum of $25,000 at this time.

In December of 1958, Raymond informed plaintiff that he and defendant could only repay the loan to plaintiff by transferring title to the real property to him. At the time of this conversation one installment on the note secured by the second deed of trust was in arrears. Plaintiff was requested by Raymond to accept a deed to the property and assume payment of the obligation secured by the first deed of trust and reconvey the second deed of trust and cancel the note secured thereby. At this time there were two payments on the first deed of trust note in arrears, totaling the sum of $380, and there were property taxes due in the sum of $331.

An escrow was opened to effect the transfer above described. Instructions were singed and a grant deed was duly executed by Raymond and defendant and deposited therein. At close of escrow the deed was recorded and returned to plaintiff. Plaintiff assumed the obligation of the note and first deed of trust, reconveyed the second deed of trust and cancelled the $10,000 note secured thereby. Plaintiff paid the delinquent payments on the note secured by the first deed of trust and the real property taxes that were due. The escrow instructions included the following clause: ‘Sellers herein agree to vacate the property as soon as possible, by January 1, 1959, if it is possible.’

On January 2, 1959, a three-day notice to quit the premises was personally served on defendant and thereafter this action was commenced. Raymond was not at this time occupying the premises and was not therefore named as a defendant in this case.

On January 6, 1959, plaintiff filed a complaint in unlawful detainer alleging that since December 11, 1958, he was the owner and entitled to the possession of the described real property. Following the sustaining of defendant's demurrer a first amended complaint was filed alleging that on or about December 11, 1958, said real property was duly sold by defendant to plaintiff and title in plaintiff has been duly perfected; that plaintiff is and has been since said date the owner and since January 1, 1959, been entitled to its possession. Service on January 2, 1959, of the three-day notice to surrender possession of the premises was alleged and that defendant remains in possession following expiration of such three-day period and possession and damages by way of rent was demanded.

On February 10, writ of possession was issued by the court and defendant vacated the premises on February 16, 1959. This matter thereafter came on for trial and judgment for plaintiff resulted.

Several grounds are relied upon by defendant for a reversal of the judgment herein. As the following ground is decisive it appears unnecessary to consider the others.

Defendant contends and we agree that no cause of action is stated against her in the first amended complaint, under which judgment was rendered herein, in that the allegations of this pleading show that the notice in writing to surrender possession of the premises was prematurely given.

By the provisions of the escrow agreement defendant had agreed to vacate the property ‘* * * by January 1, 1959, if it is possible.’ January 1, 1959, was a state holiday. Gov.Code, § 6700. Section 6706, Government Code, is as follows: ‘Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day which falls upon a holiday, such act may be performed upon the next business day with the same effect as if it had been performed upon the day appointed.’ Sections 13, Code of Civil Procedure and 11, Civil Code, are substantially identical.

In speaking of an act provided ‘by law or contract’ to be performed, the above code sections, insofar as they refer to an act to be performed by contract, mean a contract entered into between the parties the terms of which are definite and the conditions or provisions of which are to be complied with within a specified time; such contracts as are defined by sections 1549 and 1550,1 Civil Code. Cheney v. Canfield, 158 Cal. 342, 348, 111 P. 92, 32 L.R.A.,N.S., 16.

The contract of defendant with plaintiff was to do the certain thing of vacating the premises by January 1, if possible, and otherwise met all essentials of a valid contract. A tenant of real property is not guilty of unlawful detainer thereof until the time fixed for such occupancy by the agreement of the parties has expired. § 1161, Code Civ.Proc.

Under the provisions of the agreement plaintiff had at least all of January 2, 1959, this being the next business day following such holiday, in which to perform her agreed act to surrender possession of the premises. French v. Smith Booth Usher Co., 56 Cal.App.2d 23, 26, 27, 131 P.2d 863; Stoltenberg v. Harveston, 1 Cal.2d 264, 267, 268, 34 P.2d 472; Alford v. Industrial Accident Comm., 28 Cal.2d 198, 200, 169 P.2d 641. The service of the three-day notice upon defendant to surrender the premises could not legally be made until January 3, 1959. The service thereof on defendant on January 2, 1959, was premature. A full three days must then have elapsed under such notice and the complaint in unlawful detainer was not fileable before January 7, 1959. The filing of the complaint herein on January 6, 1959, was likewise premature.

The judgment is reversed.

FOOTNOTES

FN1. ‘§ 1549. Contract, what. A contract is an agreement to do or not to do a certain thing. § 1550. Essential elements of contract. It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.’.  FN1. ‘§ 1549. Contract, what. A contract is an agreement to do or not to do a certain thing. § 1550. Essential elements of contract. It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.’

KINCAID, Justice pro tem.

FOX, P. J., and ASHBURN, J., concur.