Kepner v. John M. C. Marble Co.

SHAW, J.

This was an action for the reformation "of a lease made by defendant to plaintiff and, as reformed, to have the same, together with a chattel mortgage made by plaintiff to defendant and a bill of sale made by defendant to plaintiff, all executed in connection with the said lease, rescinded for failure of consideration. Defendant answered, denying the material allegations of the complaint, and also filed a cross-complaint for the foreclosure of the chattel mortgage given it by plaintiff.

The court gave judgment for defendant and rendered a decree for the foreclosure of the chattel mortgage, from which, and an order denying his motion for a new trial, plaintiff prosecutes this appeal.

In August, 1909, defendant was the owner of a two-story apartment house in the city of Los Angeles, known as the Boylston Apartments, together with certain furniture contained therein. As a result of negotiations between the parties it was, on August 31, 1909, orally agreed that defendant would sell to plaintiff the said furniture for the sum of one thousand eight hundred dollars in cash and lease said apartment house to him for a term of five years from September 1, 1909; it being understood that plaintiff should execute to defendant a chattel mortgage upon said furniture to secure the payment of the rent of said premises to the extent of not exceeding two thousand dollars. It was further orally agreed, if plaintiff should so elect and request, defendant would in the spring of 1910 construct a third story upon said apartment house, in which case and upon the construction of which plaintiff would lease it, paying therefor as rental during the balance of the term specified in said lease ten per cent per annum upon the cost of such construction. Defendant prepared the lease, together with the bill of sale of

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the personal property and the chattel mortgage, and on September 3, 1909, plaintiff went to the former’s office, where the documents were presented to him for Ms approval and execution. After a half hour’s examination and consideration thereof, he executed the lease and chattel mortgage (retaining duplicate copy of the lease), and received from defendant the bill of sale to the furniture sold to him and which was covered by the chattel mortgage. The lease contained mutual covenants usual in such instruments, but made no reference to the fact orally stated by defendant that it would in the spring of 1910, if desired by plaintiff, add to said apartment house a third story for which plaintiff should pay the rental as hereinbefore mentioned.