D. Samuels Realty Co. v. Nunan

STURTEVANT, J.,

pro tem.

This is an action on a written guaranty executed to secure the performance of the terms of a written lease. The defendants had judgment in the trial court. The plaintiff moved for a new trial, the motion was denied, and from the order denying said motion the plaintiff appealed and has brought up the evidence in a bill of exceptions.

If there was a surrender of the lease by the original lessees and an acceptance of the premises by the landlord, it is conceded that the judgment should be affirmed. The defendants in their answer pleaded a surrender and acceptance, and the trial court made findings sustaining the defense. The question, as presented to this court, is solely as to whether such findings are sustained by the evidence. It is not contended that there is any 'direct evidence in the record on this

issue;

but the defendants contend that the record contains evidence from which the only fair inference to be drawn is the inference that a surrender took place. They further contend that the function of determining what inferences might be drawn

[156]

from the evidence was with the trial court, and that an appellate court may not disturb such finding unless it appears that there is no evidence to support it, or that the evidence is so clearly preponderating against the finding as to amount, in legal effect, to a want of substantial evidence

(Williams

v.

Kidd,

170 Cal. 631, [Ann. Cas. 1916E, 703, 151 Pac. 1]), and that the powers of this court are also limited where opposing inferences may be reasonably drawn from disputed facts

(Rice

v.

Carey,

170 Cal. 748, 754, [151 Pac. 135]). The plaintiff does not controvert these contentions, but maintains that the record does not disclose any evidence supporting, or tending to support, the inference which the trial court drew. To solve the problem, there is little evidence in the record. August 15, 1906, Maurice V. Samuels, as owner, leased to F. J. Bonney and J. V. Owens the southeast comer of Eighth and Clementina Streets. The lease was for a term of five years from October 1, 1906, and had attached to it a written guaranty signed by Matthew Nunan. The lessee entered and lield possession till February 20, 1907. Speaking of about that date the lessor testified :