Buhman

The action is unlawful detainer for the recovery of certain premises in the county of Napa and damages for the detention thereof.

Before trial defendant surrendered to plaintiffs the possession of said premisés, thereby leaving for determination as the sole issue to be tried the question of damages for the use and occupation of said land from March 7, 1903, to and including August 31, 1903, the latter being the date of said surrender.

From the complaint the following facts appear: On December 15, 1900, one Charles Robinson died testate in the county of Napa; his will was admitted to probate and D. S. Kyser and E. W. Hottel were appointed executors thereof. On September 2, 1902, by an instrument in writing, said fexecutors leased to defendant certain premises in said county known as the Robinson ranch for the term of one year, with the following proviso: “It is further mutually understood and agreed by the parties hereto, that in case of a sale of the demised premises the second party will quit and surrender the said premises upon thirty days’ notice and the said first party will pay to the second party the actual cost or expense said second party may have been put to in putting…