California Crushed Fruit Corp. v. International Provision Co.

STURTEVANT, J.

The plaintiff commenced an action to rescind a lease and to recover damages for alleged fraud. The defendant answered and the trial court made findings in favor of the plaintiff. From the judgment entered thereon the defendant has appealed.

The property involved was a stall in a public market. The plaintiff was engaged in selling soft drinks. It was alleged that the defendant falsely represented to the plaintiff: (1) That it should have the sole right to sell soft drinks in the market, and (2) that the aisles would be kept

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open and unobstructed so tliat all persons could freely use them and that no walls or piles of boxes, etc., would be so placed as to obscure the plaintiff’s stand from view. The lease was executed February 1, 1926. The trial court found that prior to July 26, 1928, the plaintiff did not know of his right to rescind. The action was commenced August 1, 1928.

The plaintiff alleged and the trial court found that plaintiff installed fixtures of the value of $4,300. The record does not show that, by the agreement of the parties, the title to such fixtures vested in, or was to vest in, the defendant. Therefore it remained in the plaintiff and it could, at the end of the term, remove the fixtures. (Civ. Code, sec. 1019.) There is a finding that if removed from the premises the fixtures would have no value. It follows that the item of damages based on the fixtures should have been $4,300, but that sum was not allowed. The trial court found that the rental value of the fixtures was $75 per month, and it charged the plaintiff therewith during the period of its occupancy, that is, with the total sum of $2,700, and at the same time adjudged that the title to the fixtures vest in the defendant. That portion of the judgment is not based on the proper rule.

(Hines

v.

Brode,

168 Cal. 507, 510 [143 Pac. 729].) The court also found that plaintiff had made a deposit of $500. Continuing, it found that the value of the rent as fixed in the lease, during the time of occupancy was $13,350. It also found that the reasonable value was $9,000. The difference between the two sums is $4,350. Adding the deposit to that sum the total is $4,850. But the court gave judgment for only $3,600. As the plaintiff has not appealed it may not complain. As the damages awarded were less than the amount as shown by the proof, the defendant may not complain.