Wilson

Appeal from the judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial in an action of unlawful detainer.

- The complaint shows that upon the defendant’s failure to pay rent for two months, he was served with a notice, pursuant to the terms of the lease, which declared that the lessor elected to consider the lease null and void, and notified the defendant that at the expiration of ten days the plaintiff would re-enter the premises. The moment having arrived when the plaintiff, under this notice and the provisions of the lease, was entitled to re-enter, and the defendant being still in possession, the plaintiff gave him the statutory notice to quit.

We are unable to agree with the appellant that the demurrer to the complaint, on the ground that it failed to state facts sufficient to constitute a cause of action, should have been sustained. Appellant’s theory in this behalf is that the first notice, to wit, the ten days’ notice, terminated the tenancy, and therefore no action under the three-days’ notice can be maintained. The lease seems to contemplate that upon the breach of any of its covenants and after the ten days’ notice the plaintiff…