Azevedo v. Davidson

WASTE, P. J.

Plaintiff brought this action in specific performance to compel the defendants, as trustees, to execute to him a lease, according to the terms of an alleged verbal contract, claimed to be evidenced by a memorandum in writing. Judgment was entered for the defendants and plaintiff appeals.

Plaintiff, as tenant, was in possession of the premises, the John Davidson ranch, in Marin County, under a lease which was to expire on the first day of October, 1919. The trustees, Frank Davidson and Gavin McNab, defendants and respondents herein, are trustees of the estate of John Davidson, deceased, one of the properties of the estate being the ranch here involved., Desiring to renew his lease of the premises, plaintiff had a conversation with Alice Davidson, one of the

cestui que trusts,

who agreed to such renewal for a period of five years, at the annual rental of eighteen hundred dollars. She stated to plaintiff that the defendants would agree to a renewal on such terins„ Thereafter the respondent, Frank Davidson, executed a lease of the ranch, running to plaintiff for a period of five years, but this document was never signed or executed by the cotrustee, McNab. The trial court found that McNab never promised to execute a new lease to plaintiff. Inasmuch as all the other facts were found for plaintiff and appellant, the correctness of this finding presents the question to be considered on this appeal.

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The contention of the appellant is that the undisputed evidence shows that McNab, upon two separate occasions, did promise a new lease to the appellant, and that this engagement is evidenced in writing by letters written by McNab to his cotrustee, Davidson, to the officers of the Petaluma National Bank and to the Petaluma Swiss-American Bank. The evidence on the question of the alleged promise to execute the lease is substantially conflicting. Plaintiff and his nephew, Manuel Ennis, testified as to what took place upon the occasion of two visits to Mr. McNab’s

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office. Mr. McNab also testified as to what occurred upon those visits. The testimony of the latter puts in issue the statements of the other witnesses. On the oral testimony, therefore, this court, following the well-established rule, will not disturb the finding.