Johnson v. Levy

McLAUGHLIN, J.

This action involves the right to the possession of certain real property in Dunsmuir known as the Lee livery-stable.

The court rendered judgment for plaintiff and awarded him $300 damages, together with $60 per month as the rental value of the premises during the period of detention, and defendant appeals. The court found on all of the issues, and the facts gleaned from such findings may be summarized as follows:

The owner of the premises leased the same to one Beem for the term of three years, and the latter, about seven months later, assigned the lease to plaintiff, who at the same time purchased certain personal property, consisting of horses, buggies, wagons, harness, robes, blacksmith tools and stock in and about the stable, from his assignor. At the time of such assignment and sale defendant held a chattel mortgage on the personal property sold, to secure a note for $600, with interest thereon amounting to $50. The verbal terms of the agreement of assignment and sale were to the effect that plaintiff was to execute and deliver to defendant a note for the sum of $650, secured by sureties, pay $150 in cash, and the balance of $1,500, as provided in a written agreement to be entered into between plaintiff and defendant. Pursuant to the advice of the attorney who prepared the papers, the bill of sale of the personal property was made to defendant instead of plaintiff, and the other terms of the verbal agreement were carried out. Three days after the execution of the bill of sale, secured note and agreement, Beem executed and delivered a written assignment of his lease to plaintiff. Plaintiff was placed in possession of the stable and personal property, and remained in possession thereof until the following spring, when he surrendered possession of the personal property to defendant, but refused to surrender the leasehold interest, and expressly agreed with defendant that the latter might keep the personal property surrendered in the stable for one day only. The defendant forcibly took and retained possession of the stable, to plaintiff’s damage in

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the sum of $300 and the further sum of $60 per month, the rental value of the premises during the time defendant so retained possession. This appeal is from an order denying defendant’s motion for a new trial.

The principal findings assailed as unsupported by the evidence are those relating to the cash payment and to damages and rental value, and the findings resting on the construction of the written instruments executed between Beem and defendant, and plaintiff and defendant. The sufficiency of the evidence to support the finding that Beem placed plaintiff in possession and assigned the lease to Mm is also disputed. All other findings are unchallenged and therefore we must accept them as true. We think the evidence is sufficient to sustain all the findings except those relating to damages.