Agar v. Winslow

Citations

• 123 Cal. 587
• 56 P. 422
• 1899 Cal. LEXIS 1123

Syllabus

<p>Ejection of Remedies—Legal Availability Essential.—The rule that where there exists an election of inconsistent remedies, the party is confined to the remedy first preferred and adopted, only applies where both remedies are open and legally available to the plaintiff; and where the remedy first adopted is not legally available, the party is not estopped by his mistake in selecting it from subsequently availing himself of the other remedy.</p> <p>Id.—Unlawful Detainer—Prior Action of Ejectment—Landlord and Tenant.—A prior action of ejectment brought by a landlord against a tenant whose right of possession had not terminated, and who was not then a trespasser, does not preclude the landlord from maintaining a subsequent action for an unlawful detainer.</p> <p>Id.—Eviction of Lessee—Effect of Improper Action of Ejectment.— Though it is not necessary that there shall be an actual ouster to constitute an eviction of a lessee by the lessor, and any act of the lessor which results in depriving the lessee of the beneficial enjoyment of the premises constitutes an eviction, yet the mere commencement of an action of ejectment against the lessee which is not legally maintainable, and is dismissed, does not constitute an eviction, if the lessee, and those holding under him,remain in the beneficial enjoyment of the premises.</p> <p>Id.—Payment of Bent by Subtenants—Liability of Sublessee.—Where all the subtenants in possession under a sublessee were advised by the lessor to pay the rent, and they paid the same to the sublessee, who had given security for rent to the original lessee, and such sublessee and his subtenants remained in possession under the original lessee, and the sublessee remained liable to the lessee for rent, the improper action of ejectment by the lessor against the lessee did not constitute an eviction of the lessee.</p>