Chovin v. Miranda

GRAY, J.,

pro

tem.

Respondent Leona Isabel Chovin recovered a judgment against appellant Joaquin P. Miranda and her husband, Arnold Chovin, individually and as copartners for the unpaid balance of rent reserved in a written lease. The lease demised a garage to the copartners for a term of ten years at a total rental of $48,000 payable in monthly instalments of $400 each. It acknowledged the receipt, as security, of $1600, which was to be applied in payment of the rent accruing during the last four months of the term and upon which respondent agreed to pay interest at the rate of 4 per cent per annum. At the trial appellant conceded the signatures of the parties to the lease but denied its delivery. Upon this appeal he raises the same question of delivery by claiming that the court erred in denying his motion for a nonsuit and that the evidence is insufficient to support .a finding of delivery. The lease took effect upon its delivery to the copartners. (Civ. Code, sec. 1626.) Although they had signed the lease they never became obligated to pay rent unless it was delivered to them.

(Davidson

v.

Ellmaker,

84 Cal. 21 [23 Pac. 1026];

Stetson

v.

Briggs,

114 Cal. 511 [46 Pac. 603] ;

Feigenbaum

v.

Aymard,

71 Cal. App. 713 [236 Pac. 156];

Burgess

v.

Doran,

86 Cal. App. 659 [261 Pac. 519].)

Respondent alone testified in her case in chief. When she rested upon her own testimony appellant moved for a nonsuit upon the ground that her testimony affirmatively showed that she had retained possession of the lease and had never delivered it to the copartners. His motion having been denied, he assigns such denial as error. Thereafter he alone testified in his own behalf. In rebuttal respondent called her husband who corroborated her previous testimony. If respondent’s testimony was sufficient to support a finding that the lease was delivered, the motion for a nonsuit was properly denied. Hence it will be necessary to consider only the sufficiency of her testimony to support such finding.