Markowitz v. Ikemoto
Markowitz v. Ikemoto
Opinion of the Court
In 1951, appellant purchased the leasehold interest in certain premises known as the Alaska Hotel in the city of Sacramento. A new lease was executed between appellant and respondent which provided, in part:
“The Lessee shall personally occupy said demised premises and shall keep the same in good repair, including all improvements which may hereafter be added, damage by the elements excepted, and shall not make alterations thereon without the written consent of the Lessor and shall not commit or suffer to be permitted any waste on said premises.
“At the expiration of said term or the sooner determination thereof, the Lessee shall peacefully quit and surrender possession of said premises in as good condition as reasonable use and wear thereof will permit.”
In 1955, appellant moved out of the premises and delivered a notice of rescission to respondent. Respondent thereafter commenced an action against appellant, seeking to recover rent, attorney’s fees and damages for breach of the covenant to repair. Appellant filed a cross-complaint seeking a cancellation of the lease and a promisory note executed contemporaneously therewith. The trial court held that appellant had surrendered up possession of the leased premises and that respondent had accepted possession, and ordered that the lease and note be cancelled. The court, however, awarded respondent damages in the sum of $1,376.30 for breach of the covenant to repair. Appellant has appealed from the part of the judgment awarding damages against him.
Appellant’s major contention is that the judgment must be reversed because of a finding of the trial court that “during the trial it became necessary to determine the condition of the premises when defendant went into possession, and
“The defendant had been in possession approximately four years. It stands to reason that he would not have taken possession of the premises, and to have agreed to keep them in good repair, if the premises had been in such a condition as they were in when he moved out. ’ ’
Mr. Markowitz testified to what he found as the condition of the premises in August, 1955, after lessee vacated the premises, and Mr. Quillici, an inspector for the Sacramento Health Department, testified to what condition the premises were in after lessee vacated the premises.
Markowitz, whose testimony was corroborated by Quillici, testified that the premises were in very poor condition. He stated:
“Well, they were in very poor condition. All the plumbing throughout, there were sinks and basins throughout where the bottom of the basin was broken, taped together, handles tore off the basins and sinks were dripping and in very poor condition as though not so much from just normal wear and tear but from real abuse. In one particular, that is, there was one sink completely missing, gone right off the wall. The bannisters and rails coming up the stairs, they were loose and torn away in a couple of places. Lathes and plaster was out. There were various rooms had holes in the walls that had been done just sort of pushed or kicked or cut. The paper was all torn and the floor coverings were all broken and there was broken windows. The windows, no shades or curtains, no light globes in the place. It was just pretty much of a mess. . . . All the windows, many of the glasses were completely broken out and there was glass on the floors and none of the windows would work. None were in working condition. There wasn’t a shade in the place, occasionally a curtain.”
He also testified in detail to other damage.
Appellant offered the testimony of himself, his daughter, and several other persons who testified that the premises were improved by appellant during his occupancy. This testimony
While it is true that the burden of proving damages by reason of appellant’s breach of the covenant to keep the premises in good repair was upon respondent, we believe that the evidence supports the court’s findings that respondent was damaged to the extent of $1,376.30. Appellant relies upon the contention that since respondent could not testify positively and minutely as to the exact condition of the premises at the time of the commencement of the term of the lease, no damages can be awarded. It is true that the rule has been enunciated that in order for a lessor to recover for breach of a covenant to repair, the condition of the premises at the beginning and termination of the lease must be shown and if he does not do so he may not recover. (Goodyear Fabric Corp. v. Hirss, 169 F.2d 115; Zoslow v. National Savings & Trust Co., 201 F.2d 208.) However, it has also been held that where the premises have been surrendered in a damaged condition the plaintiff has proved a prima facie case, and it is incumbent on the lessee, if he would avoid liability, to prove the damage was due to the excepted cause. (Rustad v. Lampert, 149 Minn. 363 [183 N.W. 843].)
In the instant case we believe the evidence herein-before set forth was sufficient to support the conclusion that the damage which was found when the premises were surrendered, such as broken windows, damaged plumbing fixtures, and other items hereinbefore mentioned, was not the result of normal wear and tear and that appellant breached the provision of the lease requiring him to keep the premises and improvements in good repair. The memorandum opinion and the detailed findings show that the trial court weighed the evidence carefully and segregated from the total expenditure of $3,120 by respondent in the repair of the premises the items totaling the sum of $1,376.30 as the amount of damages suffered by respondent because of appellant’s breach of the covenant to repair.
The judgment is affirmed.
Van Dyke, P. J., and Peek, J., concurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.