November, 1922, payment; and if all of the terms of this agreement are carried out upon the part of said second parties, then they shall not be called upon by first party to account for any sums of money for the months above mentioned; but if said second parties make default in any of the covenants herein contained, and first party again takes possession or is entitled to take possession of said premises, she shall also be entitled to retain all of said above-named sum of $700.00 as liquidated damages for the use and occupation of said premises by the second parties under this contract. . . . And it is agreed that time is of the essence of this contract, and that if the second parties do not make the payments hereinbefore provided for, at the time and in the manner therein specified, or default in any of the covenants above agreed upon, then and in that event this contract may, at the option of the first party, thereupon and without notice to second parties, be terminated and thereafter become null and void; and that thereafter the first party or her agents may re-enter and take possession of said premises in entirety, and remove said second parties therefrom, or any and all other persons unlawfully holding the same, or any part thereof, using all force that may be reasonably necessary, said second parties hereby waiving any and all damages that may accrue from such removal."

Upon discovering that her lessee, the appellant here, had entered into this agreement with the Weadons, plaintiff, deeming that the former had thereby violated her covenant not to sublet or transfer the use or possession of the premises, brought this action on January 21, 1922, alleging that without plaintiff's consent appellant had sublet the leased property to the Weadons and had transferred to them the use and possession thereof. Before bringing the action. plaintiff served upon each defendant the statutory three day's notice to quit and deliver up possession. At that time appellant was in possession of the property, she having previously effected a re-entry.

Appellant's answer, besides containing a denial that she had sublet the premises or had transferred the use or possession thereof, pleaded as affirmative defenses: (1) That plaintiff had waived the covenant against subletting and transferring the use and possession by previously giving to appellant permission to place a "manager" in charge of

the apartment house; (2) that on January 1, 1920, at plaintiff's request, appellant had orally agreed to pay an additional sum of $20 per month on her lease-that is, a monthly rental of $120 instead of the $100 per month provided for in the written lease; that pursuant to such oral agreement she paid to plaintiff such additional sum of $20 for twentyone months, making a total of $420; that said total of $420 was "additional rental at the rate of $20 per month upon said premises for twenty-one months from January 1, 1920, to and including September 1, 1921," and that in consideration of such increased rental plaintiff had agreed that defendant might install a "manager"; and (3) that since taking possession appellant had expended for repairs and new furnishings more than $3,000.

Appellant has not stated her points with any definiteness or crystalline lucidity. Her principal points, as nearly as we can discern them, are: (1) Her contract with the Weadons was not a sublease or a transfer of the use or possession of the premises; (2) by previously permitting appellant to install a manager, a Mrs. O'Brien, who was in charge of the apartment house for appellant from February, 1921, to June of that year at a salary of $35 per month, respondent waived appellant's covenant not to sublet or transfer the use or possession; (3) the expenditures made by appellant for repairs should have been allowed as an offset to respondent's claim of damages for the unlawful withholding; (4) the twenty-one payments of $20 each likewise should have been allowed as an offset; and (5) the trial judge erred in his refusal to give certain instructions. and in his rulings upon certain objections to the admission of evidence.

[1] The instrument executed by appellant and the Weadons, though it is styled a "Contract for Services," is but a thinly veiled attempt to conceal appellant's deliberate evasion of her covenant not to sublet the premises or transfer the use or possession thereof. Looking beyond the form of the transaction to discover its true import we can readily see that the arrangement made with the Weadons amounted to an underletting of the premises, notwithstanding the parties designated their agreement a contract for services. Under the provisions of the instrument the Weadons were not to go into occupation simply as servants of appellant.

314

FRASIER V. WITT.

It

[62 Cal. App. They were new tenants, and not merely new occupants. A part of the lessee's estate was transferred to them. That is, they were given the right of exclusive possession for a definite term, one year, for which a fixed rent was reserved. The document provides that the Weadons are to manage and conduct the apartment house "for the term of one year," and that during that "term" they shall pay appellant "the sum of $275 per month of January, 1922, and thereafter upon the 10th day of each upon the 10th day and every month during the remainder of this term." This part of the document is so worded that the Weadons, in effect, obligated themselves to pay appellant this fixed sum of $275 per month irrespective of whether they received that amount from the rentals of the several apartments or not. It is further provided that if the Weadons shall "default" in any of their covenants then appellant, at her option, may "re-enter and take possession of said premises in entirety, and remove said second parties therefrom." is clear that it was within the contemplation of the parties that the Weadons should have the right to receive and retain the whole income to be derived from the apartments. True, the instrument declares that the Weadons shall have the right to retain only the income in excess of $275 per month; but as that sum was to be paid by them to appellant in any event, the effect is the same as if the document had expressly declared that the Weadons should retain all the income from the apartments, rendering to appellant a rental of $275 per month during the term. Such a provision is wholly inconsistent with the idea that the Weadons were but servants of appellant. Moreover, if the relation were not that of landlord and tenant but that of master and servant, as appellant would have us believe, then why did appellant expressly reserve to herself the right of "re-entry" for condition broken? Such a reservation would not have been necessary had the possession of the Weadons been that of servants and not that of tenants. Clearly, the transac tion possessed all the elements necessary to constitute it an underletting of the leased premises, let the parties to it call it what they may.

[2] Respondent's previously granted permission to install a "manager, i. e., a mere agent or servant, did not authorize appellant to sublet to a tenant the entire premises

and transfer the right of exclusive possession. Therefore any permission which respondent may have given to employ a servant to manage the apartment house was not a waiver of appellant's covenant not to sublet or to transfer to a tenant the use or possession of the premises as an entirety, as was done when appellant put the Weadons in possession under the so-called "Contract for Services."

[3] Appellant was not entitled to set off the cost of the improvements made by her. We do not understand her to claim that respondent violated any covenant to make repairs. And even if the latter had violated such a covenant, still it would have been the violation of a covenant wholly independent of appellant's covenant not to sublet or transfer possession, and therefore would not be a defense to this action (McSloy v. Ryan, 27 Mich. 110); nor would it be a proper subject for setoff or counterclaim. (Arnold v. Krigbaum, 169 Cal. 143 [Ann. Cas. 1916D, 370, 146 Pac. 423]; Phillips v. Port Townsend Lodge, 8 Wash. 529 [36 Pac. 476].) Appellant seems to think that section 741 of the Code of Civil Procedure gives her the right to set off the cost of the improvements. That section has no application here. Aside from the consideration that setoff or counterclaim is usually not permissible in an action for unlawful detainer, section 741 is applicable only when the improvements are made by a defendant who, at the time when they were made, was holding adversely to the plaintiff. (Hannan v. McNickle, 82 Cal. 122 [23 Pac. 27].) Hence the defendant, when she made the improvements, was holding not adversely to but under plaintiff, as the latter's tenant.

[4] The $420, the aggregate of the twenty-one additional payments of $20 each, is not available as on offset or recoupment. Assuming, for the purposes of this decision only, that these additional amounts could have been successfully pleaded as a recoupment or an offset if, as appellant testified, they were paid as advances on rent to accrue in the future at a time subsequent to the forfeiture of appellant's lease, still the fact remains that such a defense was not pleaded. Appellant's answer alleges that the $420 was an additional rental . . . upon said premises for twenty-one months from January 1, 1920, to and including September 1, 1921." This period antedated the transaction whereby appellant sublet the premises to the Weadons contrary to

her covenant. That underletting did not occur until December 10, 1921. There can be no question as to respondent's right to receive and retain all rents which accrued prior to the forfeiture of the lease. Such prior rents could not possibly be set off against the damage which was caused by appellant's unlawful detainer after she was served with notice to quit.

What we thus far have said will suffice to dispose of most of the other points raised by appellant. The few remaining assignments are not pointed out with sufficient definiteness to call our attention to the particular action of the court which is deemed to be erroneous. We cannot be expected to hunt through the record to find errors which appellant's general discourse might lead us to suspect may exist. She should at least specifically point out the errors upon which she relies.

The judgment is affirmed.

Works, J., and Craig, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 26, 1923.

[Civ. No. 4139. Second Appellate District, Division Two.-May 28, 1923.]

J. L. COPELAND, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, etc., Respondent.

[1] CRIMINAL LAW-DEMURRER TO INDICTMENT - RESUBMISSION TO SAME GRAND JURY-DISCRETION.-Under section 1008 of the Penal Code, when a demurrer to an indictment is sustained, the superior court has the discretion to order the case resubmitted to the same grand jury that returned such indictment.

[2] ID.-MODES OF PROSECUTION-ELECTION-DELEGATION TO DISTRICT ATTORNEY.-In such a case, the superior court may delegate the choice of any one of the modes of prosecution provided in section 1008 of the Penal Code to the district attorney; and an order sustaining a demurrer to an indictment and directing that the case be "resubmitted to the grand jury," constitutes a determination