Hanley v. General Petroleum Corp.

STURTEVANT, J.

The plaintiff sued the defendant to recover a judgment for money. The- jury returned a verdict in favor of the plaintiff and from a judgment entered thereon the defendant has appealed.

On March 31, 1928, the defendant leased to the plaintiff a gasoline filling station at Post and Broderick Streets, San Francisco. The lease extended over a term of years. The plaintiff made a deposit of $600 which, according to the terms of the lease, was to pay the rental for the last four months of the term. The plaintiff entered into possession and paid the rental for the months of April, May, June

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and July. Thereupon he notified the defendant that in making the lease the defendant had misrepresented the facts and that basing his action on the misrepresentation so made the plaintiff rescinded the lease. Upon receiving that notice the defendant authorized the plaintiff to continue in posses-. sion of the station and authorized him to operate it for the defendant until the defendant could make another transfer. The plaintiff continued in the latter capacity for two months. During that period of time he collected $430.68 which he did not pay over to the defendant. In his complaint he pleaded the foregoing facts and other facts and asked judgment for damages and alleged that he held $430.68 of the defendant’s money which he would apply on any judgment that might be rendered. In its answer the defendant did not put in issue the question of rescission, but denied any misrepresentation and a trial was had on the subject of damages. The defendant makes the claim that this is an action in equity, that there should have been findings, that there were none, and that the judgment is a nullity. The point cannot be sustained. The plaintiff’s complaint is not necessarily an action for rescission. The answer admitted the rescission of plaintiff and when the case went to the jury, the pleadings presented solely issues of law and not of equity.

The next point made by the defendant is that the verdict included certain elements as damage which in truth and in fact were not damage. Both parties concede that in this case the measure of damage is the amount which will compensate for all the detriment, whether anticipated or not, proximately caused by a breach of the obligation.