in its most recent opinion180 on the subject spoke of it as "largely a question of fact." Whether the use of the expression "largely a question of fact" instead of the expression "always a question of fact" has any significance remains for the Supreme Court to

say.

As far as the functions of judge and jury are concerned, the question would appear to be rather a mixed case of law and fact, rather than always a question of fact. Would it be the proper function of a jury to decide whether, from the nature of the case, it is impracticable or extremely difficult to fix actual damages, or is it enough that the jury find the truth of the evidence to support the ultimate fact? Should not the court consider the facts as found by the jury and in view of these facts itself decide the impracticability or difficulty of determining the actual damages? This division of the question gives full significance to the word "largely" as used by the court in the Dyer case in its expression "largely a question of fact," but until the Supreme Court has decided the matter it will still be a moot question in California.

VII. CONCLUSION

Although the remedy of liquidated damages is an exception and not the rule, it is playing a more important part each year in the mercantile world. The action of the California courts in recognizing liquidated damages in farmers' co-operative marketing corporation contracts11 and in collective bargaining associations of employers of labor132 has opened a vast field to the remedy. The Dyer case133 has cleared up the situation considerably, not only on the procedural side134 but in the field of substantive law as well.135 A lawyer who draws a liquidated damages clause now treads on well-settled ground and no longer gropes in the dark. It is now as simple to plead a cause of action for

130 Dyer Bros. v. Central Iron Works (1920) 182 Cal. 588, 189 Pac. 445. 131 Anaheim Citrus Fruit Assn. v. Yeoman (1921) 34 Cal. App. Dec. 798, 197 Pac. 959. Petition to have cause heard and determined in Supreme Court denied May 16, 1921.

132 Dyer Bros. v. Central Iron Works (1920) 182 Cal. 588, 189 Pac. 445. 133 Supra, n. 132.

134 By holding that an allegation that it is impracticable or extremely difficult to fix actual damages is sufficient to bring the case within § 1671 Civil Code.

135 By emphasizing the reasonableness of the stipulated sum in determining intent. For the discussion see supra, p. 14.

liquidated damages as an action upon a common count,136 while no difficulty should be encountered in the drawing up of the agreement itself.137 Far too many cases in the past have been decided upon mere procedural points and if this paper does no more than to point out the pitfalls that await one who strays too far from the broad path of liquidated damages it has served its purpose.

Stockton, California.

Stanley M. Arndt.

136 By merely pleading that it is impracticable or extremely difficult to

fix actual damages.

137 See supra, p. 22.

A Review of Recent California Decisions

T

in the Law of Property

(CONTINUED FROM THE SEPTEMBER NUMBER)

HE relation of landlord and tenant seems to be unusually productive of litigation. This is due in the main to two reasons: the forms of leases are still imperfectly standardized, notwithstanding centuries of experience in drafting, and the character of a lease continues to remain amphibious because of certain historical developments in English law of the thirteenth century-sometimes being viewed under the category of contract, sometimes under that of property. The period of time under review affords illustration of the unsettled character of the landlord-tenant relation, presenting a considerable number of cases in this field, many of them, however, devoid of interest save for the litigants. A few only are here mentioned. Harrelson v. Miller & Lux1 brings up the perpetually recurring question whether a given arrangement constitutes a lease or something less permanent in character-in this instance a cropping agreement. The Supreme Court determined that the instrument involved in the litigation was a lease, mainly, though not solely, for the reason that the occupier was given exclusive possession. The court in the opinion in Harrelson v. Miller & Lux also decided several points of interest in respect to farming leases, particularly one with regard to the right of a tenant to pasture straw and stubble, where the lease is made solely for "farming." Not only did the court sustain the tenant's right to pasture, but the grant by the tenant to a third person of the right was held not to be in violation of a covenant against subletting. The case affords valuable material for those drafting leases, and ought to be of importance both to landowners and tenants. Unfortunately, if one may judge from the cases involving questions in this depart

1 (1920) 182 Cal. 408, 188 Pac. 800. In view of the decision in Suwa v. Johnson (Aug. 31, 1921) 36 Cal. App. Dec. 42, to the effect that leases to subjects of Japan are not void under the initiative legislation of 1920, or even voidable as between the parties, but subject to attack only by the state through the Attorney-General, the possibility of the evasion of the purposes of the act through the employment of cropping agreements lends additional importance to the Harrelson case. It may be a matter of some interest to note that in 1680, under the Statute of 32 Henry 8, c. 16, s. 13, forbidding leases of houses for the exercise of trade to alien artificers, the court suggested means to avoid the statute, saying: “Yet there are other ways to evade it, as to make an agreement for so long as you and I please, at the rate of 201. per annum. . . or you shall have my house for so long as you and I please for such much as it is worth." Pilkington v. Peach (1692) 2 Show. K. B. 135, 89 Eng. Rep. R. 841. Though somewhat aside from the general question, it is worthy of comment in view of the Eighteenth Amendment that under

ment of law, the oversights or mistakes of one draftsman do not seem to afford experience for his successors. There is need for a collection of forms in conveyancing, affording tested precedents applying to modern and local conditions.

The lease in the Harrelson case was made "solely" for the purpose of farming; in Security Trust and Savings Bank v. Claussen," the lease was of premises to be used for the purpose of a retail liquor business. The latter expression indicated a permissive rather than an exclusive purpose; the passage of an ordinance forbidding the conducting of such business did not, therefore, affect the interest, and the tenant remained liable for the rent. Section 1939 of the Civil Code, not referred to in the opinion, seems pertinent to the case. That section says: "When a thing is let for a particular purpose the hirer must not use it for any other purpose; and if he does the latter may treat the contract as thereby rescinded." The result in Gantner & Mattern Company v. Isaacs suggests the desirability of legislation authorizing trustees to give leases which will survive performance of their trusts. Such legislation is not unusual in other states. The provisions of Section 863 of the Civil Code, vesting the whole estate in the trustee, subject only to the execution of the trust, apparently do not empower trustees to make leases to extend beyond the trust term. In the case mentioned, the District Court of Appeal held that a lease made by a trustee of real property who was acting for the benefit of the creditors was ended by the termination of the trust. The inconvenience of such a doctrine-which, indeed, scarcely seems to be a necessary one-requires remedial legislation.*

. the

this Statute of Henry 8, a vintner was held not to exercise an "art" or "mystery". Chief Justice Pemberton who, if we may believe Lord Campbell, was exceptionally well qualified to testify concerning the tavern keeper's profession (2 Campbell, Lives of the Chief Justices, p. 26) said mystery of a vintner chiefly consists in mingling of wines, and that is not properly an art but a cheat." Bridgham v. Frontee (1685) 3 Mod. 94, 87 Eng. Rep. R. 60. In 1900, the successors of Chief Justice Pemberton and his associates were again called upon to define an "artificer" and decided that a barber was not "a tradesman, artificer, workman, or laborer, or any other person whatsoever," under the Sunday observance statutes. H. Dickens, Q. C., and W. Shakespeare, counsel for the appellant, contended for the literal meaning of the words, but the arguments of these gentlemen, whose names ought to have carried some weight in respect to the meaning of the English language, were apparently overborne by those of Montague Shearman, who very appropriately was retained as counsel by the barber. Palmer v. Snow [1900] 1 Q. B. 725. "Sociological jurists" may find some connection between the personal habits and inclinations of the judges and the decisions in these two cases.

2 (1919) 30 Cal. App. Dec. 840, 187 Pac. 140. See also, Harris v. Bissell (1921) 36 Cal. App. Dec. 231.

3 (1920) 33 Cal. App. Dec. 18.

41 Tiffany, Landlord and Tenant, p. 205, § 22.

The need of a careful consideration of the difference between a covenant for the renewal of a lease and a covenant for its extension was brought out in Realty & Rebuilding Company v. Rea. The lease there provided that the lessees might take an extension for an additional three years by giving certain notice. Sureties on the original lease continued to remain bound, where the notice was properly given. Had the covenant been one to "renew" the lease, rather than to "extend" it, they would of course have been discharged.

The last-named case also considers the effect of the usual covenants to repair and to surrender at the end of the lease in good condition. It decides that neither of these covenants requires the tenant to rebuild a building entirely destroyed by fire, without his fault, though to reach this result the court is obliged practically to overrule an important case, Polack v. Pioche. It is interesting to note that to annul the effect of the decision in the last-named case, without too violent a wrench, the Supreme Court resorted to section 1644 of the Civil Code in respect to the interpretation of contracts, a legislative declaration not in force at the time when Polack v. Pioche was decided, remarking, "There is no apparent reason why a lease of real property should not be construed as any other contract pursuant to the Code provisions." Though such a method of approach causes a temporary shock to one familiar with the ordinary covenants in leases as interpreted by the courts of common law, it is probably a sane one. The design of the Civil Code is obviously that the contract of hiring should be treated in the main like other contracts; the simplification and unification of the law that will be brought about by subsuming the landlord-tenant relation under the obligation concept rather than under the dominion concept will ultimately work for better results. Meanwhile it is of interest to observe how far the law has travelled in its desire to carry out the "intent of the parties" principle, a fundamental postulate of modern society. Under feudal principles, it was at least questionable whether a tenant for years was not liable, even without fault, and independently of stipulation, for permissive

5 (1920) 61 Cal. Dec. 11, 194 Pac. 1024; same case in Dist. Ct. of Appeal (1920) 31 Cal. App. Dec. 315, 188 Pac. 621. See comment on case, 9 California Law Review, 497.

(1868) 35 Cal. 416, 95 Am. Dec. 115.

7 The sections of the Civil Code on Hiring, §§ 1925 et. seq., deal with the hiring of both real and personal property. They are found in Division III of the Civil Code, "Obligations," not in Division II, "Property."