JUNGERMAN v. BOVEE et al., 19 Cal. 354

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring. 1. This case is not brought within the principle of Friedman v. Macey. (17 Cal. 226.) The lease in this case seems to be full and explicit in its terms, and these regulate and determine the rights of the parties.

The fact that former leases contained different terms, or gave the lessees other rights,-is immaterial; for,by the express terms of this lease, the premises are to be surrendered at the expiration of the term—“ reasonable use and wear thereof, and damages by the. elements excepted.” The inference from the new contract, and from the change of the terms of the old, is irresistible to show that the intent was to surrender the old lease ; indeed, effect cannot otherwise be given to the express provisions of the last contract.

See Roberts on Frauds, 254 et seq., as to presumption from a new lease of the surrender of the old. 2. We think the point not well taken that the tenant had a license to remove the buildings. The written contract expressly contradicts this idea. It stipulates for the delivery of the premises, including the buildings, at the expiration of the term. This license is sought to be proved by evidence of a cotemporaneous oral agreement or understanding that the tenant should have the right to remove the buildings.

Even if, as against an assignee of the lease, this agreement could, in any event, be effectual, it seems clear to us that such proof would be inadmissible under the circumstances of this case, because contravening the rule that cotemporaneous parol agreements cannot be received to contradict a written contract ; and this rule applies as well to agreements of this sort, from which a license is implied, as to any other. We see nothing in the case in 10 Barbour to support the point of appellants.

The evidence of Bosqui does not show an independent agreement or a license, but .merely his construction of the lease ; but if the lease is as we construe it, it is impossible for us to see why a right or privilege, cotemporaneously given by an oral agreement, directly contradicting the effect of the writing, could be set up against the writing. 3. We are of the opinion that the plaintiff is entitled to recover in this action his damages for the injury done by these defendants. This suit is a speedy and unobjectionable mode of concluding the ■entire controversy.

The failure of the Court to consider this matter is assigned as error by the plaintiff below on cross appeal. The averment of damages do.es not seem to be denied, and no proof of the amount was made. The case is remanded that this matter may be determined. We think it better not to direct judgment, as the defendant may have been taken by surprise, but remand the case to be tried de novo upon this matter of damages, when the pleadings -may be amended so as to present the issue fairly, if amendments be desired. The decree is in other respects affirmed.

Appellants, defendants below, to pay the costs in this Court on both appeals.