
    [Civ. Nos. 1520, 1521.
    Second Appellate District.
    January 18, 1915.]
    R. M. BAKER, Appellant, v. EILERS MUSIC COMPANY, Respondent.
    Landlord and Tenant—Action on Lease eor Bent—Surrender oe Leased Premises.—An action upon a lease to recover rent alleged to be due cannot be maintained where the court finds that the premises were re-delivered to the lessor at a date prior to the months for which the rent is sought to be recovered, and that thereafter during the same month the lessor took possession of the same and offered them for rent to others, as by such acts the contract was brought to an end and the relationship of landlord and tenant ceased.
    Id.—Termination oe Lease—Surrender and Acquiescence—Evidence. A lease may be brought to an end by the surrender of the leased premises and the acquiescence in such surrender by the lessor. Such • acquiescence is perhaps best evidenced by the landlord’s taking possession of the property and assuming again all of the authority over it of an owner in possession.
    Id.—Breach oe Lease by Lessee—Remedy oe Lessor—Damages.—■A lessor may accept possession of the leased property for the benefit of the tenant, and re-let the same, in which ease he has no cause of action except for damages for the difference between what he was able in good faith to let the property for and the amount provided to be paid under the lease agreement.
    Id.—Findings op Fact—Construction op.—Findings of fact must be resolved in such a way as will result in the judgment being sustained if they are susceptible of a construction to that end.
    APPEAL from a judgment of the Superior Court of Los Angeles County. J. P. Wood, Judge.
    The facts are stated in the opinion of the court.
    Lucius M. Fall, for Appellant.
    Frank Bryant, for Respondent.
   JAMES, J.

This is an appeal from a judgment entered against the plaintiff: and is presented on the judgment-roll. Two actions were brought, each being to recover .a sum of money alleged to be due under the terms of a certain lease affecting real property in the city of Los Angeles. It was stipulated at the trial that both actions should be tried together and but one judgment rendered. The appeal is presented in the same way, although the actions are separately . entitled.

By the findings of fact it appears that appellant as lessor, on the eighth day of October, 1910, entered into a lease contract with respondent whereby he let to it certain premises situated on South Broadway Street in Los Angeles City for a term of two years and six months for a gross rental of twelve thousand dollars, which was made payable in sums of four hundred dollars on the ninth day of each and every month; that possession was given of the leased premises to respondent and that it continued to occupy .the same and to .pay the rental specified up to the ninth day of January, 1912. It is further found that after respondent had taken possession of the premises it permitted the lessor to use a space along the north wall of the building, where there were located windows used for the purpose of admitting light and air. Just when this permission was given does not appear. It was further found that no written agreement was mad® permitting such use of said space, and that on the fifth day of July, 1911, the lessee, by notice in writing, demanded that the lessor re-deliver the portion of the premises then being used by him, which demand was refused. On the twenty-first day of July, 1911, a written notice was served upon the lessor by which the lessee gave notice that it rescinded the lease contract. Six months later the lessee vacated the entire premises, as appears by finding IX of the trial judge which is as follows: ‘‘That defendant vacated the portion of said premises theretofore occupied by it, and re-delivered the same to plaintiff on the eighth day of January, 1912, and that on the thirtieth day of January, 1912, the plaintiff took possession of the said premises and offered them for rent to others.” As a conclusion of law the court found that there had been an eviction suffered by the lessee, and that there could be no recovery of any rental. It should be mentioned that the money claimed in suit was for rental of the premises for the months of March and April, 1912, all of which would have accrued, if at all, subsequent to the time that it is found by the court the lessor took possession of the premises and offered them for rent to others. The court found also the fact to be that a part of the consideration for the making of the lease was an agreement on the part of the lessor, which was consummated, to loan to the lessee the sum of thirty thousand dollars, which was secured by collateral.

It is argued on the part of appellant that the defense of respondent was based upon an alleged rescission of the lease contract, which rescission was invalid and of no effect for two reasons: 1. Because it was not shown that the lessee restored to the lessor, or offered to restore to him, the amount of money loaned, which was made a part of the consideration for the lease; and 2. That by remaining in possession of the premises and continuing to pay rent according to the stipulated terms of the lease for six months after serving its notice of rescission, the lessee waived its right to effect a rescission and by its act revived the contract in its full force. Both of these contentions would seem to be well founded, if the facts as found by the court were such as to exclude consideration of any defense except that of rescission. We need not determine as to whether the court was right in its conclusion that there had been an eviction by the lessor of his tenant. It is alleged by the respondent in its answer, and found to be true by the trial court, that the premises were re-delivered to the lessor on the eighth day of January, and that thereafter during the same month the lessor took possession of the same and offered them for rent to others. A lease contract may be brought to an end by the surrender of the leased premises and the acquiescence in such surrender by the lessor. Such acquiescence is perhaps best evidenced by his taking possession of the property and assuming again all of the authority over it of an owner in possession. It is immaterial whether it be said in this case that the lessor acquiesced in the rescission attempted to be made by the lessee, or that the parties voluntarily brought their contract relationship to a close by the one delivering up the property to the other and the latter accepting it and proceeding to find another tenant. The same result follows; the contract would come to an end and the relationship of landlord and tenant would cease. The action was brought to recover rent under the lease contract, and not for damages. A lessor who takes possession of property delivered to him by his tenant and does so unqualifiedly, thereby releases his tenants. He may accept possession of the property for the benefit of the tenant and relet the same; in the latter case he has no action except .one for damages Tor the difference between what he was able in good faith to let the property for and the amount provided to be paid under the lease agreement. (Bradbury v. Higginson, 162 Cal. 602, [123 Pac. 797] ; Oliver v. Loydon, 163 Cal. 124, [124 Pac. 731].) Findings of fact must be resolved in such a way as will result in the judgment being sustained if they are susceptible of a construction to that end.

For the reasons stated, we think the judgment is supported by the findings and should be sustained.

The judgment is affirmed.

The same order will be made in the other case, No. 1521.

Conrey, P. J.,- and Shaw, J., concurred.  