Palmer Cooke & Co. v. Stewart

Appeal from the District Court of the Fourth Judicial District.

This was an action for trespass founded upon a lease from defendant to plaintiff for certain premises in San Francisco, for one year from the 1st April, 1851, at the rent of one hundred dollars per month, payable in advance, which plaintiff avers he paid, &c., and continued in possession up till about the 25th day of June, 1851, for all of which month he had paid the rent in advance, &c., when the defendant with force, &c., entered and took possession of the said demised premises, and prevented plaintiff from using, &c. the same, and leased it to other parties, and put them in possession thereof; damage $5000.

Defendants in their answer deny all the allegations in the said complaint, or that plaintiff has sustained any damage, &c.; and aver that on the day of the buildings on the said premises were consumed by fire, and thereupon the said plaintiff abandoned the same before the entry by defendants; and the premises so abandoned, the defendants entered upon and relet as stated in the said complaint, to one, who proceeded to erect a new building thereon, &c., after which the. plaintiff claimed the premises, and defendants and their said tenant offered the same to the plaintiff, if he would pay the reasonable value of the said new building, and offered plaintiff other premises at a cheaper rent, &c., which plaintiff refused, &c., and brought this suit.

The case was tried by a jury, who found for the plaintiff $2500 damages, for which judgment was entered. And on the 15th January, 1852, a new trial was granted by,theUourt; and from the order granting a new trial, the défendants appealed.

The counsel for the respective parties agreed that the statement and arguments urged for a new trial in the Court below, be the statement read in the Supreme Court on appeal from the order granting a new trial. This statement embraces the reasons filed on the motion to vacate the verdict and for a new trial, and the testimony produced on the trial of the case. The reasons urged were, 1st. That the verdict was excessive; 2d. Because the evidence did not justify it; 3d. Because it was against law, and contrary to the instructions of the Court; and 4th. Because it was an outrage upon law, justice, &c., and tending to bring the trial by jury into disrepute. The testimony on the part of the plaintiff, consisted of the lease as stated in the complaint. A receipt for one hundred dollars for the rent paid in advance for the month of June, 1851, and the testimony of several witnesses, which show that the plaintiff went to defendants’ office to pay the rent of the premises due on the 1st July; that one of the defendants told the plaintiff that they had relet them. Plaintiff demanded possession of the ground, and offered to pay the month’s rent for July in advance, which defendants refused to accept, saying they had looked for plaintiff, and could not find him, and supposed he had abandoned the lot, and therefore they had relet it. The building on the lot was consumed at the fire of the 22d of June, 1851; there was a new building partly up when the plaintiff went to pay the rent, and was in possession of the tenants of the defendants. The plaintiff had made arrangements to rebuild after the fire. The premises rented by the plaintiff for four hundred dollars per month up to the time of the fire, and cleared about three hundred dollars, after paying the ground rent besides reserving for his own use an upper room, worth twenty-five dollars per month. Plaintiff was up the river, when the new building was putting up. The witness was to have had an interest in the new building, an equal share paying half the expenses; this was arranged with the plaintiff a day or two after the fire. The one hundred dollars per month was for the ground rent without the building, which belonged to the plaintiff. Witness had been interested with the plaintiff in the former building, but bad sold out after the May fire; was his agent to pay the rent, and put up the new building, which he delayed on account of the high price of carpenter work.