
    No. 1,978.
    GEORGE W. CROW et al., Respondents, v. THOMAS HILDRETH et al., Appellants.
    Pleading.—Ambiguity.—A complaint which in one part avers a covenant for a lease, and in another part states matter which constitutes the contract a present lease, is bad on demurrer for ambiguity.
    Appeal from the District Court of the Third District, Monterey County.
    The facts are stated in the opinion.
    
      C. B, Younger, for Appellants.
    First—The complaint, if it shows any contract, did not show a breach of the contract by appellants. A breach of the contract by the party bound to perform is an essential part of the cause of action, and must be alleged in the complaint (Brown v. Orr, 29 Cal. 122), and must be stated in unequivocal language. (Moore v. Besse, 30 Cal. 570.)
    The contract stated in the complaint is not a mere agreement for a lease, but is a present lease. (Thornton v. Payne, 5 Johns. 75; Hallett v. Wylie, 3 Johns. 47; Averill v. Taylor, 8 N. Y. 44.)
    The right of respondents to the possession of the premises was complete on the day the agreement was made. This gave them a right of entry, which was all that was necessary to enable them to maintain an action of ejectment against anybody detaining the premises. If the premises were withheld from respondents, their remedy was ejectment. (Thornton v. Payne, supra; Gardner v. Ketellas, 3 Hill, 330; Whitney v. Allaire, 1 N. Y. 311; Roman v. Kelsey, 18 Barb. 484.)
    Ejectment lies for any interest in or claim to real estate, of which possession can be delivered by the Sheriff. (Child v. Chappell, 9 N. Y. 252.)
    If the suit is for a breach of any implied covenant, to give the possession to respondents, the complaint is defective in not showing that they were prevented from taking possession, and by whom. (Grannis v. Clark, 8 Cow. 42.)
    
      The complaint should have alleged by whom, if anybody, the premises were possessed; because, if by strangers, it was not the duty of appellants to take the necessary steps to put respondents into possession (Gardner v. Keteltas, supra); or if respondents had ever been in possession and been evicted by superior title, that should have been stated in the complaint. (Kelly v. Dutch Church, 2 Hill, 105; Whitbeck v. Cook, 15 Johns. 484.)
    The complaint should have alleged performance of the substance of the agreement by respondents. (Gillum v. Dennis, 4 Ind. 417; Hill v. Grigsby, 35 Cal. 656.)
    Second■—The motion for a nonsuit should have been granted. If the complaint is to be read as merely alleging an agreement to give a lease, respondents’ proof showed that a lease had been made. This variance was fatal. (Gregory v. Haworth, 25 Cal, 653; Seale v. Emerson, Id. 293; Gyle v. Schoenbar, 23 Id. 538; Stout v. Coffin, 28 Id. 65; Masten v. Griffing, 33 Id. 111; Hathaway v. Ryan, 35 Id. 188.)
    If the agreement was a present lease, then there was no allegation and no proof of a breach.
    Third■—If the contract is to be regarded as a present lease, then there is a conflict in the finding, “which is the more fatal for being intestine. ” (Crook v. Forsythe, 30 Cal. 662.)
    But the first point, that appellants made the lease, would ‘ under-cut” the second, that they did not. (Emmal v. Webb, 36 Cal. 197; Bernal v. Gleim, 33 Cal. 669.)
    
      Julius Lee, for Respondents, filed no brief.
   Rhodes, C. J.,

delivered the opinion of the Court, Wallace, J., Temple, J., and Sprague, J., concurring.

The defendants demurred to the complaint, for the several causes mentioned in Section 40 of the Code. The complaint states that the defendants “ covenanted and agreed with the said plaintiffs to lease to them” certain premises, for- the term of one year then next ensuing; and in consideration thereof, the plaintiffs promised the defendants to pay them certain sums of money at specified times. This is an averment of an agreement for a lease.' In a subsequent part of the agreement, it is stated that the contract was “in substance and to the effect, that they, the plaintiffs, were immediately thereafter, or as soon as they, the plaintiffs, could make the necessary preparation and arrangements, to enter into and take the possession of the said premises, and have the use and occupation thereof.” .This averment as clearly imports a present lease, as the otie before mentioned does an agreement for a lease. The allegation of the breach does not assist in solving the doubt, for it is general in terms, that the defendants “have wholly neglected, failed and refused to comply with the terms of their said agreement, or to keep and perform any of their covenants, though often requested so to do. ” The demurrer should have been sustained on the ground of ambiguity. This is not mere matter of form, for the plaintiffs would be entitled to a different measure of damages if it is a lease, than they would be if it is a contract for a lease. Treating the complaint as averring a lease of the premises, the plaintiffs could not recover in this action the rental value of the premises, for they were entitled to the possession of the premisés by virtue of the lease, and it was their own fault, so far as the case shows, that they did not take possession. If the contract was an agreement for a lease, the plaintiffs, on a refusal by the defendants to execute a lease, would be entitled to recover the difference between the rental value and the contract price. This defect in the complaint is not cured by the findings—if it could be cured' in that manner—for the same ambiguity there appears. It is found that the defendants “made a contract of lease with the plaintiffs, whereby they agreed in consideration * * * * to lease to said plaintiffs the premises. ”

Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint.

By Crockett, J.: I dissent.  