Ambrose v. Hyde

LORIGAN, J.

Plaintiff sought in this action to recover the sum of five hundred dollars, in which amount he alleged the defendant was indebted to him on October 1, 1899, for rent of certain grazing-lands in Contra Costa County for the year commencing October 1, 1898. The answer of the defendant was a denial of all the allegations of the complaint. Judgment went for defendant, and from it and an order denying his motion for a new trial plaintiff appeals.

The court made a general finding in favor of defendant, which was, in effect, that he was not indebted to the plaintiff on October 1, 1899, or at any other time, in any sum whatever, and this finding is attacked as not sustained by the evidence. As far as this point relates to the testimony in the ease, bearing directly upon any negotiations for the rental of this property, entered into between the plaintiff and the defendant, but little discussion is necessary. The only evidence in the case bearing upon it was that of the parties to the action themselves. The plaintiff testified that the defendant, in his office in San Francisco, October 1, 1898, made a verbal agreement with him to rent the land for a year at a rental of five hundred dollars. This defendant denied, claiming that he positively declined to rent for a year (he was then in possession of the property), but made overtures to plaintiff for a lease of three or five years, and being unable to secure it, left the premises.

In this conflicting condition of the evidence the lower court credited the testimony of the- defendant, and, as so credited, it justified the finding of the court, and, under the well-recognized rule, the finding is conclusive upon us.

Appellant contends, however, that the evidence shows that the defendant became a tenant of the premises under him for the year alleged, by operation of law, and hence that the finding is not sustained by the evidence, but is contrary to it.

On this point the evidence shows, that the premises alleged to have been leased were, at all the dates involved in this controversy, owned by one Dr. Posey, the plaintiff having a mortgage on them. In 1897 Dr. Posey being away, his wife leased the premises to some third parties for a term to end October 1, 1898, and from these parties the defendant sublet

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