Withers v. Massengill

SLOSS, J.

In an unlawful detainer action to recover the possession of the premises, and damages for holding over after the expiration of the term, the defendants had judgment. Plaintiff moved for a new trial, and now appeals from the order denying his motion.

[770]

On May 1, 1899, the plaintiff, by a writing, leased the premises, consisting of a livery stable and the lot upon which it stood, in Salinas City, to one Tollett, for a term of three years, ending April 30, 1902. In January, 1901, the defendants, W. T. and J. T. Massengill, took a sublease from Tollett for the balance of the term, at a rental of one hundred dollars per month. The defendants remaining in possession after the expiration of the Tollett lease, this action was commenced on the first day of May, 1902. The defense relied on is possession under an oral lease, claimed to have been entered into on the seventeenth day of February, 1902, between the plaintiff on the one hand and J. T. Massengill, acting on behalf of his son and co-defendant, W. T. Massengill, on the other, whereby plaintiff let the premises to W. T. Massengill for one year from February 17, 1902, at a monthly rental of one hundred dollars, to May 1, 1902, and thereafter to the end of the term, of seventy-five dollars. The cause was tried before a jury, and the only question is whether the verdict in favor of the defendants, based, as it necessarily is, upon the existence of such oral lease, is sustained by the evidence.

As stated above, the oral lease was claimed by the defendants to have been agreed upon between the defendant J. T. Massengill and the plaintiff. No third person was present at the time of the alleged conversation. J. T. Massengill testified that on February 17, 1902, he had a conversation with plaintiff at the stable, and that “the plaintiff gave me a lease of the premises for one year beginning on the 17th of February and ending, on the 16th of February, 1903. I told him I intended to . . . pay one hundred dollars a month until the 30th of April, and thereafter until the . . . 17th day of February, 1903, at $75 per month.” Withers, on the other hand, testified that he did not on the day in question meet Massengill at the stable, “nor did he (I) make any such agreement as Massengill has testified to.” Upon the testimony of these two witnesses there arose a direct conflict as to the only fact in issue, and it would seem that under the established rule the verdict of the jury would be conclusive in this court, especially where the judge of the trial court has by denying a new trial indicated his satisfaction with the result. The appellant recognizing the rule as to the binding force of verdicts based on conflicting evidence, contends that this case