Canale v. Copello

CHIPMAN, C.

Action for rent. The cause was tried before a jury, and defendant had the verdict. The appeal is from the judgment and from the order denying motion for a new trial.

Defendant, Bendetta Copello, is the surviving widow of Gios Copello, deceased; in his lifetime, and on March 1, 1894, a

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lease of certain premises, situated in the city of Stockton, was made to him for the term of five years, at the rental of sixty-five dollars, payable monthly, and he occupied the property, with defendant and their family, until June 17, 1894, when he died. The day before he died he executed an assignment of the lease to his wife in writing, duly acknowledged before a notary, who retained possession of the assignment and caused it to be recorded June 22, 1894. After her husband’s death, defendant continued to reside on the premises, except for a few months, as will hereafter appear, until April 3, 1897, at which time she removed therefrom. She paid a monthly rental of sixty-five dollars during her occupancy. Plaintiffs claim that the assignment of the lease was delivered to defendant, and that she, having accepted it, is bound to pay the rent reserved to the end of the term. Defendant denied that the assignment was delivered to or accepted by her, or that she occupied the premises under the assignment. The principal question was whether the assignment was delivered. The testimony on this point comes from the notary public who drew the document and took Copello’s acknowledgment. He testified that he was told on June 16th that Copello wanted to see him; he went to the leased premises and found Copello quite sick and in bed; he drew the assignment, saw Copello sign it, took his acknowledgment, and retained possession of it during Copello’s life and recorded it after his death. Witness was asked the question: “What did Copello say to you in reference to this paper and what you should do with it?— A. As I remember I Avas to hold it until his death and record it after his death. I was holding it for him or his order for the benefit of his wife, to whom it was made, and I was to record it after his death.” The original document was not produced, and it did not appear that Mrs. Copello ever had it in her possession. It was in evidence that in November, 1896, Mrs. Copello entered into a written agreement with John Nassano and Filippe Arata whereby she agreed to sell to them the furniture in the house, and in the agreement it was recited that she held a lease of the hotel property from Mrs. Podesta for an'unexpired term of two years and four months from November 1,1896, and by the agreement she sublet the premises to Nassano and Arata at sixty-five dollars per month during said remaining term. They went into possession and remained