Keller v. Richbart

California Court of Appeal Mar 9, 1933 No. Docket No. 7519.Published

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Holding. The court held that a lessor is estopped from asserting the statute of frauds to invalidate a lease agreement he dictated and accepted performance under, even if he failed to sign the instrument.

Issues

Whether a lease agreement is void under the statute of frauds if the lessor failed to sign it.
Whether the trial court abused its discretion in allowing a mid-trial amendment to the complaint.
Whether the evidence was sufficient to support the jury's award of damages for loss of business and good-will.

Disposition. affirmed

Quotations verified verbatim against the opinion

“He was estopped from repudiating the lease.”

“If the questioned instrument amounted to a modification of the existing lease between the parties, the failure of the defendant to sign would be immaterial under the circumstances of the instant case”

“The damages awarded, under the circumstances of the instant case, are not so large or unreasonable that this court would be justified in reversing the judgment or in declaring them unreasonable in amount.”

THE COURT.

The following opinion, which was prepared by the late Judge Clair Sprague Tappaan while acting as a justice

pro tempore

of this court, is hereby approved and adopted as the opinion of the court:

The plaintiff recovered a judgment against defendant, the jury assessing his damages at $2,471.44. From the judg

[298]

ment entered upon the jury’s verdict defendant appeals. Plaintiff’s complaint states a cause of action arising from certain alleged violations of the terms of a lease by defendant, the lessor herein named. Defendant made a general denial of the allegations of the complaint and filed a cross-complaint claiming that certain rents were due him from plaintiff upon an implied contract.

From the evidence introduced at the trial it appears that the defendant was the owner of a certain garage building on the southeast corner of West Seventh and Magnolia Streets in the city of Los Angeles. That in November, 1927, he leased to plaintiff the rear or south 15 feet of the building for three years at a monthly rental of $100. Plaintiff to have the right to use the front or Seventh Street entrance to the building until a new entrance was cut on Magnolia Street. Some months later plaintiff, requiring more room for his business, entered into negotiations with defendant' for more floor space in the garage building where he was lessee. With that end in view plaintiff wrote at defendant’s dictation the following instrument:

“This applys to repair shop from north side of wash rack, to south end of building. Bent to start from April 1st, 1928, at 150.00 dollars a month. 50.00 more to go on lease for last month. Mr. L. Bichbart is not to make any changes on front of building till a drive way is put in west side of building and a wall put acrost. Mr. Bichbart agrees not to rent front of building for garage purposes.

“ (Signed) Geo. Keller.

”

Plaintiff signed this instrument and delivered it to defendant at his request. Contemporaneously with the execution and delivery of the above-mentioned instrument, plaintiff, at the request of defendant, gave to defendant a check for the sum of $150, which check defendant accepted and later cashed. This check had written upon its face the following:

Keller v. Richbart

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THE COURT.

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