Converse v. Ferguson

MELVIN, J.

Plaintiffs sued alleging that defendants were indebted to Verdi Thayer Converse in the sum of $2,111.38 for the rent of certain land in the county of San Diego. Thomas P. Converse appeared as a party plaintiff because of his being the husband of Verdi Thayer Converse. The defendants answered, admitting that they had leased from the plaintiff Verdi Thayer Converse a part of the property described in the complaint, but denying any existing indebtedness for the rent thereof. Several defenses were pleaded, of which we need consider but one. The cause was

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tried by the court without a jury, and judgment was rendered in favor of the defendants. From said judgment and from an order denying the motion of plaintiffs for a new trial, this appeal has been taken.

The written lease, which was duly set forth in the complaint as an exhibit, provided that the rent for the property should be one hundred and twenty-five dollars per month for the first two years, but that “in case the said lessees desired to pay said rent, by paying one-half of the receipts of the cream obtained from milking an average of fifty cows per day, that said one-half of said receipts would be received and accepted as rent for the use of said property during said two years.” We have quoted from the complaint which contains the interpretation of the lease that was evidently accepted by all parties to the litigation. The complaint contained the allegation that the receipts from the cream from fifty cows per day would produce at least two hundrd and fifty dollars per month. The receipt of $638.62 from defendants is acknowledged, and the amount sued for is the difference between that sum of money and the rental which the property would produce at one hundred and twenty-five dollars per month from the time defendants took possession of it to the date of the suit. Defendants admitted that they had paid only the sum of money alleged in the complaint, but in one of the counts of their answer alleged that they had milked an average of more than fifty cows per day; had sent the total output of their dairy to W. B. Hage of San Diego, with instructions to him that he pay one-half of the entire receipts from the said cream to the credit of plaintiffs at the First National Bank of San Diego; and that these instructions had been obeyed. The court found substantially in accordance with this defense and the principal attack of appellants is upon this finding as not sustained by the evidence.