Freeman v. Wallace

NOURSE, J.

sued in two causes of action, one for the recovery of four months’ rent for the premises situated at 386 Sutter Street, San Francisco, the other for the recovery of $110 as moneys advanced by plaintiff for the account of defendants. The defendants answered that one month’s rent had been paid and that they had been forced to vacate the premises because the plaintiff had no authority to assign to them the lease under which they occupied the premises. They also filed a cross-complaint in which it was alleged that a contract of agency was executed by the same parties under which the defendants were authorized to sell on the premises certain personal property of the plaintiff during the term of the lease; that the defendants paid to the plaintiff $3,000 in cash under the contract and delivered to her their promissory notes in the sum of $2,000-; that because of plaintiff’s failure to secure the landlord’s consent to the assignment of her lease to said premises, the defendants were compelled to and did vacate and abandon said premises and surrender the possession thereof to the plaintiff, “together with all that was therein contained belonging to said Emma B. Freeman, as well as surrendering to the said Emma B. Freeman every other thing or right accruing to them from the said Emma B. Freeman, and at the same time delivered to said Emma B. Freeman the keys to said premises, and the said Emma B. Freeman then and there accepted the surrender, aforesaid, and thereupon went into the full possession of said premises, and the use and ^occupation thereof, and resumed therein the conduct of the business that she had theretofore carried on therein, prior to the occupation of said premises by said cross-plaintiffs.”

The trial court found in accordance with the allegations of the complaint, except that it found three months’ rent to be due instead of four, as alleged. It also found the material allegations of the cross-complaint to be true. Upon these findings judgment was rendered in favor of the defendants for the return of the sum of $3,000, less the amount

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of the rentals and the money advanced to the defendants, and for the cancellation of the promissory notes. The appeal is taken from the judgment upon a bill of exceptions.

The only grounds urged in support of the appeal are that the cross-complaint failed to state a cause of action because it did not allege an offer to restore the consideration to the appellant, and that the evidence is insufficient to support the finding that the respondents surrendered to the appellant “every other thing and right accruing to them.”