Dissenting. — It appears to me that upon a review of the entire record the evidence on the points at issue here should be held to be, as a matter of law, insufficient to support a judgment for the plaintiff and that affirmance of the order granting defendant’s motion for a new trial should be placed upon that ground.
Plaintiff in her opening brief states that “Briefly, the facts are, that the Appellant [plaintiff] was a tenant in the apartment house of Respondent [defendant]. Respondent served a three day notice on Appellant. Then, one day during the absence of the Appellant, Respondent called Lyon Van and Storage and removed all of Appellant’s furniture, rugs, clothing, and personal belongings from said apartment. Respondent did not at any time file an unlawful detainer action to obtain possession.”
The record, viewed favorably to plaintiff, shows also that on May 14, 1958, plaintiff by her own admission was two months in arrears in rent and had previously given defendant a rent cheek for one of such months which had not been honored by her bank. Her possession was under a written lease which provided, among other things, that “In the event of any violation of said terms and conditions by the tenants the lessor shall have the right to take possession forthwith *612and terminate this tenancy returning to tenants any unused portion of rent paid, after deducting necessary closing charges. . . .
“Lessor shall have a lien upon all personal effects, furniture and baggage contained in tenants’ apartment for all unpaid charges.”
On May 10, 1958, defendant served upon plaintiff a three-day notice to quit. Then on May 14, 1958, in plaintiffs’ absence defendant’s manager entered the premises by means of a key (undisputably without any breach of the peace) and had plaintiff’s furniture and other possessions removed by a storage company and stored for plaintiff’s account. When plaintiff returned to the apartment and entered it some time after 1:30 a.m. on May 15, 1958, she discovered the absence of her furnishings and made inquiry of the manager. He said to her, “Get the hell out of here. You’re out of this place. Don’t talk to me about it. Call Mr. Talbot [defendant].” Later the same day she telephoned to defendant’s attorney who told her her furniture was at the storage company if she wanted to pick it up. Still later in the day she filed this action for forcible entry and detainer and for conversion.
The jury returned a verdict in plaintiff’s favor in the sum of $6,500 as general damages plus $3,000 punitive damages; defendant’s motion for new trial was granted as noted hereinabove, and this appeal by plaintiff followed.
I believe that the above-quoted terms of the lease gave defendant a contractual right to enter the apartment and to remove the furnishings, and provide a complete defense to this action.
In Baxley v. Western Loan & Bldg. Co. (1933), 135 Cal. App. 426 [27 P.2d 387], as in the case at bench, plaintiff charged forcible entry and detainer under the provisions of sections 1159 and 1160 of the Code of Civil Procedure.1
*613There, defendant was vendor under an installment contract of sale of an apartment house which gave the vendee the right of possession “until a breach or a default by the vendee” , and gave the vendor the right upon any breach or default to “reenter upon the premises and resume possession thereof.” After the vendee fell in arrears on several payments defendant’s employe informed the manager of the apartment that he was going to take possession and remain on the premises for defendant. The manager admitted him, installed him'in one of the apartments, and agreed to continue as manager for defendant. The next day plaintiff appeared at the building and demanded that defendant’s representative leave the premises, which was refused. During the discussion which followed either force or threats of force were used by both parties. Plaintiff then left the premises. It was held (p. 429 [2]) that no forcible entry was shown under subdivision 1 of section 1159 because the actual entry by defendant was not accompanied “by any kind of violence or circumstances of terror,” that subdivision 2 was intended to cover situations where one who had gained peacable access thereafter evicted the occupant by force or the like, and that no such circumstance had occurred. With respect to forcible detainer under the provisions of section 1160, the court, citing various cases, recognized the rule to be that (p. 430 [3]) “When contractual relations exist between the parties whereby the right to possession has been given to the one taking possession by means of the peaceable entry, then neither the entry nor detention of the property is ‘unlawful’ within the meaning of said section 1160 dealing with forcible detainer,” and held that neither defendant’s entry upon nor its detention of the premises was “unlawful” under the provisions of section 1160.
More specifically, as to the contractual rights of the owner, Mr. Justice Spence spoke for a unanimous court as follows: “Upon default in the payments, respondent was entitled to possession under the contract between the parties and could take possession if it could be done peaceably. (Francis v. West Virginia Oil Co., 174 Cal. 168, 170 [162 P. 394]; 25 Cal.Jur., p. 696, at 697.) We are of the opinion that when respondent, acting under its right conferred upon it by the *614contract between the parties, obtained possession of the premises by means of a peaceable entry, neither the entry upon nor the detention of the premises was ‘unlawful’ within the meaning of the subdivisions of said section 1160 relating to forcible detainer.” (P. 431 of 135 Cal.App.)
And in Moldovan v. Fischer (1957), 149 Cal.App.2d 600 [308 P.2d 844], in which defendants had made a nonforeible entry during the absence of the occupant, the rule was again declared, in reliance upon Baxley v. Western Loam & Bldg. Co. (1933), supra, 135 Cal.App. 426, 430, that (pp. 608-609 [9, 10]) “where there is no force involved in the entry, and where the entry is pursuant to a contract between the parties, the entry is lawful,” no unlawful entry or detainer has occurred and any “subsequent force and threats of force did not make the entry forcible.” As further emphasized in Moldovan (p. 609 [10]), the “principles upon which the . . . [above rule] is based have been recognized in other cases [citations], and apparently are in accord with the general rule in other jurisdictions. (See annotations, 45 A.L.R. 313; 49 A.L.R. 517; 60 A.L.R. 280.)” (Italics added.) I quote from 45 A.L.R. 321: “According to the weight of authority, a provision in a lease giving to the landlord the right on certain contingencies, to re-enter without process or by such force as is necessary, is valid.” The note cites supporting cases from Alabama, Arkansas, California, Colorado, Illinois, Oregon, and England. In 49 A.L.R. 511-517, a Mississippi case is cited, in which appears the declaration that “Where the landlord is entitled to possession which is unlawfully withheld by his tenant, and the lease contract provides, as it does in effect in the present case, that the landlord may re-enter without legal proceedings, such a contract is binding to the extent that the landlord may re-enter, provided he does so without breaking doors, windows, or other passages of ingress, and neither uses nor threatens personal violence toward the tenant. ...” (Clark v. Service Auto Co. (1926), 143 Miss. 603 [108 So. 704, 707 [2], 49 A.L.R. 511].)
Plaintiff, however, relies upon California Products, Inc. v. Mitchell (1921), 52 Cal.App. 312 [198 P. 646], in which defendants, lessors of premises on which plaintiff was five months in arrears in the payment of rent, removed a lock from the door and entered during plaintiff’s absence. The lease provided that at any time the rent was unpaid it should be lawful for the lessors “without previous notice or demand, to re-enter the demised premises and the same peaceably to *615hold and enjoy thenceforth as if this lease had not been made.” The court, in seemingly mistaken reliance upon Winchester v. Becker (1906), 4 Cal.App. 382 [88 P. 296], held that defendants’ entry had been forcible, and was consequently not protected by the quoted lease provision. In the latter case (Winchester v. Becker, supra) defendant had first entered plaintiff’s house by means of a key which was secreted over the back door. Plaintiff thereafter recovered this key and ordered defendant’s agent off the premises. Defendant then, claiming “under a pretended agreement for a sale of the land on which a deposit of $100 had been paid” (italics added) but which contained no authority for defendant to enter, again entered the premises through the front door by means of a “false key.” The finding was that defendant entered “fraudulently and without right” and the reviewing court held that the second entry was forcible within the provisions of subdivision 1 of section 1159 of the Code of Civil Procedure (“breaking open doors, windows, or other parts of a house”).
I believe the better view, and one more in keeping with the general weight of authority in other jurisdictions, is that stated and followed in the first cited cases (Baxley v. Western Loan & Bldg. Co. (1933), supra, 135 Cal.App. 426, and Moldovan v. Fischer (1957), supra, 149 Cal.App.2d 600), and that where, as here, entry is authorized by contract and is made by means of a key only, which is, after all, the same means as used by the tenant to enter, and where no actual force, violence, menace, threats or “circumstances of terror” are shown (cf. Providence Baptist Assn. v. Los Angeles etc. Temple (1947), 79 Cal.App.2d 734, 738 [1] [180 P.2d 925]), no forcible entry has been established. Further since defendant here, as in Baxley and Moldovan, had a contractual right to possession of the premises, his detention of them following peaceable entry was lawful and did not constitute forcible detainer. The holding of the majority, “that the evidence supports the verdict of forcible entry and detainer. There was evidence that defendant entered plaintiff’s apartment without her consent,” appears to me, on the whole record, to merit no more persuasive effect than that which the drawee bank accorded plaintiff’s rent check — the check with which plaintiff, during the period relevant to this lawsuit, purportedly “paid” for the right to use and occupy that portion of defendant’s premises which the majority refer to as 1 ‘ plaintiff’s apartment. ’ ’
*616It should be recognized that it is still presumably lawful for adult persons, not convicted of felony, to own real property, contract for its rental, require the tenant to pay the agreed value of occupancy, and provide for security therefor, including a right of peaceful reentry upon any default of the tenant. Tenants and property owners may agree that the latter shall have some rights as against defaulting tenants, short of the time and expense required by court proceedings, and where such rights can be exercised peaceably, as was done here, it seems to me only common and elementary justice that the courts uphold them. It may be further observed that the import and effect of the majority holding in refusing to sustain those rights appears to constitute state action impairing the obligation of a contract in violation of section 10 (clause 1) of article I of the Constitution of the United States and section 16 of article I of the Constitution of California.
Finally, and most distressing in my view, is the seeming alignment of the court on the side of the person who not only breached a contract but, according to the undisputed evidence, appears to have compounded the civil wrong by issuing and passing a check without sufficient funds or credit, to the end of extending her unlawful taking of the owner’s property (the use and occupation of his premises) for a further period without compensation. To reward such a person for such conduct at the expense of the innocent party to the contract (whose only wrong consisted in believing that a contract, admittedly executed by competent parties with a lawful object and for a valuable consideration, would be upheld) appears to me to pervert law and subvert justice.
In the circumstances I would hold that as a matter of law plaintiff is not entitled to judgment against defendant for forcible entry and detainer.
McComb, J., and White, J., concurred.
Appellant’s petition for a rehearing was denied May 10, 1961. Schauer, J., McComb, J., and White, J., were of the opinion that the petition should be granted.
Section 1159: “Every person is guilty of a forcible entry who either:
“1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstances of terror enters upon or into any real property; or
“2. Who, after entering peaceably upon any real property, turns out by force, threats, or menacing conduct, the party in possession. ’ ’
Section 1160: “Every person is guilty of a forcible detainer who either:
‘11. By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or
“2. Who, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand *613made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant.
1 ‘ The occupant of real property, within the meaning of this subdivision, is one who, within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands.” (Italics added.)