(190 P.)

the corner of Jackson and Drumm streets in San Francisco, for the term of five years, beginning December 1, 1914. The rental, after the first three months, was $500 a month, payable on the 1st day of each month, in advance. Thereafter in August, 1915, Butcher sold the premises to the Cutting Packing Company, subject to the lease. As a part of the consideration of this sale, the plaintiff, Downing, executed an agreement with the defendant in pursuance whereof the plaintiff deposited in the American National Bank the sum of $6,000, to be held by said bank for the purpose of securing the payment of the rents falling due thereafter from Ibos and Roche under said lease. The agreement provided that, if Ibos and Roche should make default in the payment of any monthly installment of rent, then "as often as payment of said installments of rent shall become in default the said American National Bank of San Francisco, upon the written demand of [Cutting Packing Company] shall pay to the said

1. Contracts 318-Forfeiture should be re- [Cutting Packing Company], out of the said strained to technical limits.

Where the right to a forfeiture is created by contract or by law, it has always been considered it should be restrained to the most technical limits of the terms and conditions on which the right is to be exercised. 2. Landlord and tenant 94(1) Notice to quit held not to terminate tenancy for years, and guarantor may still be held liable.

Where plaintiff deposited a large sum of money to guarantee payment of rent by a tenant for years, and on default in payment of rent the landlord, pursuant to Code Civ. Proc. § 1161, subd. 2, served notice to quit or pay rent, the mere service of notice did not of itself terminate the tenancy, for, as shown by the following subdivision, the purpose of such notice is a forfeiture of the lease; hence, where the tenant failed to vacate the premises, and the landlord, waiving the notice despite plaintiff's protest, etc., collected the rent out of the deposit, plaintiff cannot recover the amount, on the theory a new tenancy was created by acts of the parties, for which he was not a

guarantor.

In Bank.

Appeal from Superior Court, City and County of San Francisco; Geo. E. Crothers, Judge.

Action by George Downing against the Cutting Packing Company. From a judgment for plaintiff, defendant appeals. Reversed. Lloyd Baldwin and John F. Cassell, both of San Francisco, for appellant.

Houghton & Houghton and Edward T. Houghton, all of San Francisco, for respondent.

moneys so deposited with it, the amount of the installment or installments of the rent so in default, until the whole of said sum of $6,000 is exhausted," and the said bank was thereby authorized and directed, upon receiving written notice that an installment of rent was due and unpaid, to pay to the Cutting Packing Company, out of moneys, the installment so in default.

said

The installments falling due for October, November, and December, 1915, and January, 1916, were not paid by Ibos and Roche, but were paid by the said bank out of the fund deposited by Downing, as provided in said agreement. Because of this failure of Ibos and Roche, Downing became interested in obtaining a new tenant, and began negotiations with the Cutting Packing Company to that end. In pursuance of these negotiations, Downing procured one Webster as a prospective tenant, and an agreement in writing was proposed by the Cutting Packing Company to Webster, under which a lease of the premises was to be given to Webster as soon as the Cutting Packing Company could obtain possession thereof, either by the surrender of Ibos and Roche, or by proceedings to oust them under unlawful detainer proceedings. Webster proposed conditions to which the company would not agree and the negotiations ceased. The proposal, the counter proposal, and the rejection thereof all occurred on February 1, 1916.

Expecting that such agreement would be made, a notice from the company to Ibos and Roche to pay the rent or quit the premises. was prepared by the attorney for the company for service. This notice was in the form re

SHAW, J. The appeal is from the judg-quired by subdivision 2 of section 1161 of the ment. The material facts are as follows: Code of Civil Procedure. It required Ibos and On October 31, 1914, Thomas W. Butcher Roche to pay to the Cutting Packing Comleased to Ibos and Roche certain premises at pany, within 3 days after the service of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

notice, the sum of $500, due as rent for the [ The appellant calls attention to the fact that month of January, 1916, or to deliver the pos- there are two classes of notices to quit: session of the premises to said company, and First. Where the tenancy is from year to stated that, unless they so paid said rent or year, from month to month, or at will, or delivered the possession, legal proceedings where a clause in the lease provides for a against them would be instituted for the re- termination by notice. Code Civ. Proc. § 1161, covery of possession. This notice was deliver- subd. 1. Second. Where the law allows the ed by the attorney of the company on Febru- landlord to terminate the lease, because of ary 1 to a clerk in his office for service, and it some default by the tenant in the performance was served on Ibos and Roche on February of its conditions or covenants, by giving a 2, 1916. The date for the payment of the rent notice to the tenant to perform within a specitherein demanded expired on February 5, 1916. fied time or deliver the possession. Id. subds. The Cutting Packing Company then decided 2 and 3. Its claim is that the authorities to abandon the proceedings for restitution of relied on by the respondent relate exclusively the premises, and on February 4 it demanded to notices of the first class, that a different of the said bank the payment of $500, due for rule is applied in those of the second class, rent for January, and also the $500 which that in such cases there is a forfeiture of the became due on February 1, for the rent of that remainder of the estate, which forfeiture month, and in pursuance of said agreement, occurs only when a second condition or act authorizing and directing said bank on such has supervened in connection with the notice, demand to pay said rents, the said sum of and that such a notice may be withdrawn, and $1,000 was paid by it to the Cutting Packing the proceeding for forfeiture abandoned by Company on February 4. It does not appear the party giving the notice, without the act or that Ibos and Roche were aware of this pay-consent of the party to whom it is given, proment, or consented thereto; but they continu- vided the withdrawal occurs before the expiraed in possession of the premises. On Febru- tion of the time therein fixed for the forfeiture. ary 5 Downing demanded of Cutting Packing His theory is that, when a notice to pay rent Company that it immediately proceed to oust within three days or quit, as provided by secIbos and Roche by unlawful detainer proceed- tion 1161, is served, no change in the legal ings he made similar demands on February relations between the parties takes place at 26, 1916, and March 1, 1916. The company did that time or during that period, that the tennot comply with these demands, but suffered ant may pay the rent within the time, in the tenants to remain in possession, and de- which case the lease continues in force unmanded and received from the bank the rent changed, or he may allow the rent to remain for the months of March, April, May, and unpaid and thus terminate the lease at the end June, amounting to $2,000, out of the fund so of the 3-day period; but that if, while the deposited by Downing as aforesaid, notwith-time is running, the landlord elects to recall standing the continued objections of Downing to its so doing. This action is for the recovery by plaintiff of the said sum of $2,000.

or waive the notice and abandon the proceeding for a forfeiture, he may do so, and the lease will continue in force thereafter.

The case presents the question whether or [1, 2] The language of the section shows not, after having given the notice of February that the appellant's theory is correct. Subdi2, 1916, to pay rent or quit, the Cutting Pack-vision 1 applies only to cases where the tenant ing Company had the lawful right to abandon holds over "after the expiration of the term further proceedings under said notice and for which it is let to him" and to tenancies at collect the rents for subsequent months from will which have been ended by a 30 days' the fund deposited by Downing as security notice. Civ. Code, § 789. This would, of therefor, notwithstanding the protest of course, include all tenancies of the first class Downing against its so doing. The respond-above described. The provisions governing ent contends that the company could not with- notices of the second class are set forth in draw or waive the notice to pay rent or aban- subdivisions 2 and 3. Notices to pay rent or don the proceeding to recover possession, and quit are provided for in subdivision 2 and by hold Downing liable as surety, without his a part of subdivision 3 referring thereto. consent. He states his position as follows: They are as follows:

"Where a valid notice to quit is given by a landlord to his tenant, the effect of such notice is to terminate the relation of landlord and tenant between the parties as of the date limited in the notice; that a notice to quit is a notice that cannot be withdrawn or done away with, at the option of the party giving it, and without the consent of both landlord and tenant, and, even if so withdrawn, a new tenancy is thereby created; consequently a guarantor of the rent under the original tenancy is not liable for rent which becomes due after the time the notice would have expired or actually

"2. When he continues in possession without the permission of his landlord, or the successor in estate of his landlord, if any there be, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, in writing, requiring its payment, stating the amount which is due, or possession of the property, shall have been served upon him and if there is a subtenant in actual occupation of the premises, also upon such subtenant."

(190 P.)

tenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance may perform the conditions or covenants of the lease or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture."

inured to the benefit of Ibos and Roche and to their landlord, the Cutting Packing Company. Ibos and Roche remained in possession after the security was deposited, and availed themselves of the benefit thereof by allowing the rent to be paid out of that fund, instead of The language of the last clause of subdi- paying it themselves. After the giving of the vision 3, above quoted, shows that the object notice to quit they still remained in possesto be attained by a notice under subdivisions 2 sion, and continued therein until the payments and 3 is a forfeiture of the lease. If the ten- here in controversy were made. It must ant, or other person interested, shall "pay the therefore be presumed that they consented to stipulated rent," he may "thereby save the such payments. The bank stood in the posilease from forfeiture." The lease in such tion of their agent with respect to the matter cases is not terminated by the expiration of of making the actual payments of the the term fixed therein, or by any provision rent, and the payments operated to their therein for a termination by the parties, but benefit. The forfeiture, as we have seen, solely because of the default in the payment had not occurred at the time the payment of of rent, the subsequent notice, the lapse of 3 February 4 was made. If the notice had days, and the ensuing forfeiture. The estab- terminated the lease or created the forfeiture, lished rule is that, where the right to a forfei- or if Ibos and Roche desired that it should ture is created by contract or by law, "it has have that effect, it was their duty to vacate always been considered that it was necessary the premises on or before the expiration of the to restrain it to the most technical limits of 3-day period, and also to give notice to the the terms and conditions upon which the right bank to withhold further payments of rent is to be exercised." Jameson v. Chanslor-Can-accruing after the 1st of February. Since they field, etc., Co., 176 Cal. 11, 167 Pac. 369; did not do either of these things, the concluRandol v. Scott, 110 Cal. 596, 42 Pac. 976. sion must follow that they acquiesced in the Under this rule it must be admitted that the payment, and that the lease was not forfeited, forfeiture does not occur until the last of the but remained in force as completely as if no acts which are to create it has occurred. It proceedings for forfeiture had been begun, therefore does not take place until there has and that the security deposited for the paybeen a failure to pay the rent during the 3 ment of rent remained available to the Cutdays allowed by the statute. It follows, also, ting Packing Company for that purpose. that if the lease is not terminated by such forfeiture it remains in force for the remainder of the term, or until it is ended in some manner by some subsequent act or agreement. The respondent concedes that if Ibos and Roche had paid the rent themselves at any time within the 3 days following the service of the notice the lease would have remained in force to the same extent as if no notice had been given. The landlord could not have accepted the rent during that period and at the same time have claimed that the notice itself forfeited the estate and terminated the lease. Since forfeitures are not favored in law, the consequence of these principles would be that if the rent was paid in any manner or from any security provided therefor by Ibos and Roche, or by any other person for their benefit, during the three days, the forfeiture is thereby waived and the lease will remain in force.

The respondent claims that this result is avoided by reason of the fact that the deposit in the bank was not made by Ibos and Roche, nor at their instance, so far as appears, but was made by Downing at the time of the sale from Butcher to the Cutting Packing Company, and apparently for some purpose in the interest of Butcher or Downing. If it was done for this purpose, the fact is not fully disclosed by the record. But we regard the point as immaterial, for whatever the motive or inducement to Downing or Butcher may have been, the result was that the security

The respondent, in support of the position that the notice terminated the lease, cites 1 Wood on Landlord and Tenant, § 44; Woodfall on Landlord and Tenant, 423; Underhill on Landlord and Tenant, § 127; Alden v. Mayfield, 164 Cal. 11, 127 Pac. 45; Myers v. Herskowitz, 33 Cal. App. 581, 584, 165 Pac. 1031; Western Union Telegraph Co. v. Penn. R. R. Co. (C. C.) 120 Fed. 365; Wisner v. Richards, 62 Wash. 429, 113 Pac. 1090, Ann. Cas. 1912D, 160; Doe v. Calvert, 2 Camp. 388; Cheny v. Batten, 1 Cowp. 245; Fitzpatrick v. Childs, 2 Brewst. (Pa.) 367. An examination of these authorities shows that they all relate to notices to quit which did not involve a forfeiture, but which, either by reason of the law or of some clause in the lease providing therefor operated to terminate the tenancy between the parties. Thus, in Alden v. Mayfield, there was a tenancy from month to month, which had been terminated by a 30-day notice, as the law provides it may be. Civ. Code, §§ 1944, 1946. In Western Union T. Co. v. Penn. R. R. Co. the lease itself provided that it could be terminated by either party on 6 months' notice, and such notice had been given. Even in that case the court recognized the rule for which the defendant here contends by saying:

"It will be observed that withdrawal of a notice to quit is not, like a waiver of forfeiture, the act of one party, but requires the assent of both; and, when such joint assent is given, it creates a new tenancy." 120 Fed, 385.

We concur: ANGELLOTTI, C. J.; LENNON, J.; WILBUR, J.; OLNEY, J.; LAWLOR, J.

In this way it distinguishes cases where the It is apparent, from these considerations, notice itself terminates the tenancy from that the court erred in holding that the lease cases where the tenancy is only terminated was terminated by the giving of the notice to by the occurrence of a forfeiture. The pas-quit, and that the security deposited was not sage quoted also recognizes the law to be that available to the appellant as a fund for the the forfeiture may be waived by the action of payment of the subsequent rents. the party in whose favor it occurs, without The judgment is reversed. the concurrence or consent of the party upon whom it is to be inflicted. In Wisner v. Richards the lease in question was terminable by its own provisions by a month's notice given by either party. The same is true of all the other cases, except Myers v. Herskowitz. That case is somewhat peculiar, but it is not authority in favor of the plaintiff. The lease there contained a covenant that the tenant should keep a certain passageway clear of obstructions. The notice to quit was given under subdivision 3 of section 1161, requiring the tenant to perform the covenant or quit possession. Suit was begun 10 days after the notice was served; the tenant continued in possession, and thereafter the landlord accepted rent from him during the pendency of the action until near the time of judgment. The court held that the acceptance of rent while the tenant so remained in possession was not a waiver of the forfeiture arising from the notice to perform the covenant or quit, unless it was received in such a manner as to imply that it was so intended by the landlord.

There are authorities in support of the contention of the appellant. In Tuttle v. Bean, 54 Mass. (13 Metc.) 275, it is held that if, after giving the notice to quit, the landlord told the tenant that he need not quit in pursuance of the notice, it constituted a waiver of the notice and prevented a forfeiture of the lease. In Hodgkins v. Price, 137 Mass. 13, it was held that where a notice to quit for nonpayment of rent was given, the forfeiture does not become absolute until the time given in the notice under the statute has run; the court saying:

This language, it will be observed, is substantially the same as the above-quoted clause from subdivision 3, § 1161. The following cases are substantially to the same effect and support the appellant's claims: Whitney v. Swett, 22 N. H. 10, 53 Am. Dec. 228; Norris v. Morrill, 43 N. H. 213.

The appellant also cites cases which declare the rule to be that, even in cases of the first class above described, where the notice operates to fix the end of the tenancy prior to the time it would otherwise expire, the notice can be waived by the landlord, and the tenant restored to his original term. This question, however, we need not consider. It is not involved in the case.

(47 Cal. App. 173) McCAHAN v. McCAHAN. (Civ. 3320.) (District Court of Appeal, First District, Division 1, California. April 20, 1920.)

1. Contracts

-Agreement of husband to pay fees and costs of divorce action contra bonos mores.

Notwithstanding Civ. Code, § 158, an agreement between husband and wife, in advance and in anticipation of a divorce action being brought, to pay the wife's counsel fees and costs, is void as contra bonos mores. 2. Divorce 182-Court may compel husband to pay wife money to prosecute appeal.

Under Civ. Code, § 137, the court may, during the pendency of a divorce action, compel the husband to pay the wife any money necessary to prosecute or defend the cause; and this power is not exhausted upon the rendition of the judgment in the trial court, but continues during the pendency of an appeal. 3. Divorce 214(4)-Good faith and merit of appeal by wife determined from showing in lower court on application for suit money.

The question of good faith and merit of an appeal by a wife in an action for divorce is a the showing made in the lower court upon application for allowance of counsel fees and costs, under Civ. Code, § 137.

matter to be considered and determined from

4. Divorce 214(4)-Agreements as to counsel fees to be subjected to examination of trial court.

Ante-divorce agreements as to costs and counsel fees must be subjected to the examination of the trial court to see that they are fair and equitable, the matter being vested by Civ. Code, § 137, in the exclusive jurisdiction of the trial court.

Appeal from Superior Court, Humboldt County; George D. Murray, Judge.

Action by Daniel F. McCahan against Lillian McCahan for divorce. Judgment for plaintiff, and defendant appeals. From an order directing plaintiff to pay to defendant a certain amount as costs and counsel fees on appeal, plaintiff appeals. Affirmed. See, also, 190 Pac. 460.

Pierce H. Ryan, of Eureka, for appellant. J. J. Cairns and H. L. Ford, both of Eureka, for respondent.

(190 P.)