Frey v. Vignier

McFARLAND, J.

Judgment went in the court below for plaintiffs, and the defendants appeal from an order denying their motion for a new trial. There is no appeal from the judgment. The action was originally against Francis T. Eisen to recover damages against him for his failure to replace a certain kiln.used for drying oats and other grains, which kiln had been in a house leased by him to plaintiffs and their predecessors, and had been destroyed by fire. During the pendency of the action Eisen died, and his executor and executrix were substituted as defendants. The transcript presents the difficulty of discovering what questions are involved rather than the difficulty of determining the questions when discovered.

The court, in addition to formal matters, found these facts: On October 7, 1887, said Eisen leased to the present plaintiff Frey and Jesse Newbauer and J. C. Holloway, who then composed the firm of the Monarch Milling Company, and were engaged in the business of manufacturing meals of various kinds out of wheat, oats, and other grains, certain premises in San Francisco consisting of floors and parts of floors in the building on Stevenson Street known as numbers 12, 14, and 16, together with certain machinery therein owned by Eisen and used for milling purposes, and a kiln for drying situated on the third floor. The said lessees took possession and began therein their said business. Afterwards Holloway sold and conveyed all his interest in the lease and business to the said Frey and Newbauer, and at other times there were sales of interests in the lease and business to and from other parties, until finally the plaintiffs Frey and Hoffman and Schwabacher became and remained the owners and continued to conduct the business. On the twenty-first day

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of September, 1887, without any fault of plaintiffs, a fire occurred which injured and damaged said building and property and entirely destroyed the kiln and some of the machinery. Immediately after the fire Eisen agreed with plaintiffs, and promised them, to repair the premises and rebuild the kiln if plaintiffs would repair and rebuild the parts of the machinery which had been damaged and destroyed by the fire, which plaintiffs promised to do. Plaintiffs complied with their part of this contract and replaced said machinery; but Eisen neglected and refused to rebuild said kiln or to build any kiln. The kiln was necessary to the proper conduct of said business of plaintiffs, and they were damaged by Eisen's refusal to rebuild the same in the sum of $756.47, for which amount judgment was rendered against defendants. The evidence fully warrants these findings. The order denying the new trial must therefore be affirmed, unless it should be reversed upon some of the special grounds suggested by appellants; and we do not think that any of such grounds are tenable. We will notice such of them as seem to call for any discussion.