Eastern Hotel Co. v. Miller Bros. 101 Ranch Wild West Show

KOFORD, P. J.

This is an appeal by plaintiff from a judgment of nonsuit. The complaint alleged that defendants took possession of certain vacant store buildings on Third Street of which plaintiff was lessee, and posted upon and inside of said stores and buildings circus bills, posters and advertisements. It alleged that such possession and use was fraudulent and forcible; that it injured and disfigured the building; that it turned away prospective subtenants; and “that the reasonable value of the premises for said use and occupation thereof is $3,000.” The prayer of the complaint was for $3,000. A writ of attachment was issued and levied in the case. The complaint is so worded that, despite the wide range and variety of its statements, it cannot be said to be anything else than an action for the reasonable value of the use and occupation of the buildings for the purposes of publicity.

At the conclusion of plaintiff’s testimony, the court granted defendants’ motion for a nonsuit upon the grounds, first, that there was no evidence that the defendants in person or by agent entered into or posted any signs upon or in the said buildings, and, second, that there was no evidence of the reasonable value of such use and possession.

The evidence introduced by plaintiff showed that circus bills and signs advertising the “101 ranch” show or circus were displayed upon the inside of the said buildings without permission, but there was no evidence to show that the defendant corporations put the signs there. Plaintiff offered evidence of a conversation of its counsel with H. W. Seymour, and also offered a letter written by said Seymour containing declarations by said Seymour that he was the manager of the defendant Wild West Show and declara

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tions that said defendant had caused the said bills and signs to be posted on the said buildings. Objection was made to this evidence as hearsay and upon the ground that there had been no preliminary proof that said Seymour was the manager or an agent of the said defendants. This objection to the evidence was sustained. The ruling was correct. The agency could not be proven by the extrajudicial statement of the agent. (1 Cal. Jur. 698.) There was no competent evidence, therefore, tending to prove that the said signs and bills had been posted by the defendant corporations. The motion for nonsuit was properly granted on that ground as to those defendants.