Haddad v. McDowell

WORKS, P. J.

This is an action to recover damages for the wrongful eviction of plaintiff, as a tenant, by defendants, as his landlords. A nonsuit was granted as to defendant McDowell. Plaintiff had judgment against defendant corporation and that defendant appeals.

The trial court found to be true an allegation of the complaint that respondent had leased from appellant the westerly 150 feet of “lots 10 and 11”, the court having also found that appellant was the owner of the property mentioned. It is contended that the finding first mentioned is not supported by the evidence for the reason that the lease covered only the westerly 100 feet of lot 11. It is said in the brief: “All the rest of lot 11 and all of lot 10 were not leased to him, but were subjected to a right of way for Haddad and his tenants.” The nature and extent of this right of way are not pointed out, but it is stated in appellant’s brief that “The amended answer alleged that each lot was only 150 [sic] long, and that the easterly 50 feet of each of the lots was improved with an automobile

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shop not concerned in this lease.” There is, however, nothing to show that evidence was introduced to prove the allegation, if the answer in fact contained such an allegation, for the brief fails to indicate where the averment is to be found. But it was stipulated at the trial that the real property involved in the action “is just that covered or just that real estate mentioned in the lease”. The property mentioned in the instrument was the westerly 100 feet of lot 11. It would appear that the finding is not supported by the evidence. We doubt whether the' erroneous finding did appellant any harm, but rather than discuss his argument on that head we prefer to make a new finding on the subject. Appellant says that “the decision should be corrected” with respect to this matter, and we have the power to make the correction in the mode just stated (Code Civ. Proc., sec. 956a).

The pleading of respondent upon which the cause was tried was an amended complaint. In it the lease between the parties was mentioned, and the pleader then proceeded, “a copy of which is attached to the original complaint herein and made a part thereof, and reference to which is hereby made a part of this amended complaint”. This language was followed by a statement of certain of the provisions of the lease according to its legal effect. Laying aside the question whether in his amended complaint respondent properly made the lease an exhibit, by adoption from the superseded complaint, laying aside also the point whether the document was fully enough pleaded in the later pleading according to its legal effect, we think appellant is in no position to urge the contention that the amended complaint was defective. If there was a defect in the pleading it was cured by the fact that appellant alleged the execution of the lease in its amended answer and set up a copy of it as an exhibit to that pleading.