Bishop v. Rainboldt

WILSON, J.

Action to quiet title to real property. Appellant answered asserting a possessory interest in the second floor of the building located on the property by reason of a lease dated January 31, 1935, and a written extension thereof dated May 31, 1939.

The court found (1) that respondent is the owner in fee and entitled to possession of the property; (2) that the lease and the extension above mentioned were executed by respondent; (3) that the memorandum of May 31, 1939, was intentionally altered in a material way by appellant who was entitled to benefits under the contract, and that the alteration was made while the agreement was in appellant’s exclusive possession and under his control; that the alteration consisted of a change in the figure “1950” to “1955” and thereby the agreement as executed by respondent extending the lease to February 28, 1950, was altered so as to extend it to February 28, 1955; (4) that respondent did not consent to the alteration and had no knowledge of it until February, 1945; (5) that only one copy of the agreement dated May 31, 1939, was executed and that it was always in the possession and under the control of appellant; (6) that appellant was not in rightful possession of the second floor of the building as alleged in his answer.

[570]

The judgment quieted respondent’s title against appellant’s claims to any part of the property and decreed that respondent have and recover possession of the entire property.

Appellant has appealed from the judgment and from the order denying a new trial. The latter is a nonappealable order and the appeal therefrom will be dismissed.

Appellant contends that the evidence is insufficient to sustain findings (3) and (4) above outlined.

Under date of January 31, 1935, respondent executed a lease to appellant covering the second floor of the building on the property for the term beginning February 1, 1935, and ending on the last day of February, 1940. Appellant was granted an option to lease the premises for an additional five-year period. The option was exercised on October 17, 1935, and the lease was thereby extended to February 28, 1945.

In May, 1939, appellant, who was a practicing dentist, desired a further extension of the term of the lease and rights that were not given him by the original lease, such as parking privileges, the right to erect electric signs on the roof, and permission to make certain alterations in the premises. His attorney prepared a memorandum of agreement embodying all the changes he desired and thereafter respondent and appellant met in the latter’s office, no one else being present. At the conclusion of their conference one copy of the agreement was signed by the parties and it was retained by appellant. Respondent did not see it again until some time in 1945.