Simon Newman Co. v. Lassing

CHIPMAN, C.—

This is an appeal from an order granting plaintiff’s motion for a new trial. The action is unlawful detainer. The cause was tried by the court with a jury, and defendant had the verdict. The grounds of the motion were insufficiency of the evidence to justify the verdict and errors of law occurring at the trial. The order granting the motion is general.

In an opinion found in the record the court stated the point on which it rested the order. It is well settled that the ground upon which a new trial is granted by the trial court does not prevent this court from reviewing the case and sustaining the order on other grounds

(Kauffman

v.

Maier,

94 Cal. 262;

Churchill

v.

Flournoy,

127 Cal. 355); and the filing of an opinion by the court does not affect the rule.

(Newman

v.

Overland Pacific Ry. Co.,

132 Cal. 73.)

The demurrer to the complaint for insufficiency of facts alleged, or that the judgment is not supported by the findings, or that the latter are inconsistent with the pleadings, cannot be considered on motion for new trial where there is no appeal from the judgment.

(Moore

v.

Douglas,

132 Cal. 399.)

The complaint alleges an agreement of lease made on December 7, 1900, for the term ending December 1, 1901, under

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which defendant went into possession of the premises involved ; alleges the expiration of the term, and that defendant is holding over without plaintiff’s permission and contrary to the provisions of the lease; alleges demand in writing of defendant for possession; that three days have elapsed since making said demand, and defendant refuses to quit possession. The amended answer denies specifically the material allegations of the complaint, and as further defense alleges the ownership of a large tract of land, of which the land in question is a part; that defendant is a farmer, and for many years—to wit, ever since 1878—dealt with Simon Newman, and later with plaintiff corporation, purchasing from them a great deal of merchandise, and through them disposing of most of his farm products; that they kept all of his accounts up to January 1, 1901, and defendant kept no books; that Simon Newman was manager of the corporation, and a man of large business experience; facts intended to show certain alleged confidential and fiduciary relations between defendant and Newman during all said "time are set forth, and it is alleged that on November 30, 1900, defendant owed plaintiff sixty thousand dollars, and no more; that defendant was then seventy-two years old, and much impaired in body and mind; that on said last-named date he was, and had been for several days, under the influence of liquor to such an extent as to be incapable of attending to business; that within two or three days prior to said date, and on that day, Newman and one Solomon Wangenheim made certain false and fraudulent representations to, and uttered certain threats against, defendant, as set forth in the answer, by reason of which defendant signed a deed conveying to plaintiff all of said property; that on December 7, 1900, (seven days after the deed was executed,) one E. S. Wangenheim, on behalf of plaintiff, represented to defendant that he, defendant, had no longer any interest in the said land, and unless he would execute his note for $936 to plaintiff, he would be excluded from said premises, but if such note was given, he could remain in possession of the land described in the complaint for one year from said date; that defendant believed said representations, and executed said note, but that if he had known of his rights in the premises, he would not have given the