Jungerman v. Bovee

Citations

• 19 Cal. 354

Syllabus

<p>In this case it was held that a lease, dated Dec. 1st, 1855, and running three years and nine months, with power in the lessee to remove buildings erected by Mm, etc., was surrendered and its provisions abrogated by a second lease dated Dec. 6th, 1856, containing different terms, and among them, a clause for the surrender of the premises at the expiration of the term, “ reasonable use and wear thereof and damages by the elements excepted,” and that under the second lease the tenant could not remove the buildings. See facts.</p> <p>Where a tenant stipulates in a written lease of a lot for the surrender of the premises at the end of the term, “reasonable use and wear thereof and damages by the elements excepted,” evidence of a cotemporaneous oral agreement, that the tenant should have the right, at the expiration of the term, to remove buildings erected by him on the lot, is inadmissible, because contradicting the terms of the lease—the evidence in this case not showing an independent agreement or license to remove the buildings, but simply the lessor’s construction of the lease at the time of its execution.</p> <p>Query: Whether such a cotemporaneous oral agreement could in any evcnt.be effectual against an assignee of the lease.</p> <p>The rule that cotemporaneous parol agreements cannot be received to contradict a written contract, applies as well to agreements from which a license is implied, as in this case, as to any other kind of agreement.</p> <p>Where a lessor sues to enjoin the lessee from taking the bricks from and destroying a brick building erected by the lessee on the lot leased—the tenant claiming the right to remove the building under the terms of the lease—and claims damages in the sum of $1,000, and the answer makes no denial of the damages, and no proof thereof is offered, and the Court, after hearing, grants the injunction but refuses a judgment for damages : Held, that plaintiff was entitled to recover Ms damages; that such form of suit is an u