The opinion
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. Keteltas , 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 .) *Page 619
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.