Borderre v. Den
Before: Britt
Synopsis
Time for Appeal—Dismissal.—An appeal from a judgment not taken within one year from the time of the entry of the same must be dismissed
Id.—Review of Findings—Conflicting Evidence.—Where the findings of the court are as general in their statements as the pleadings themselves, any material conflict appearing in the evidence must he resolved in such manner as to sustain the general conclusions found as facts by the court.
Agency—Unauthorized Lease.—An agent empowered to lease a tract of land for one year at a specified rental cannot make a lease, either oral or written, obligatory on his principal, for a portion of the land at a less rental for a term exceeding one year.
Id.—Authority of Agent—Statute of Frauds.—The authority of an agent to make a lease for a period in excess of one year must be in writing, and cannot be conferred by oral contract.
Id.—Void Lease.-—A lease by an agent exceeding the term of one year cannot operate as a valid lease for one year, the agent’s authority not being in writing.
Id.—Lease by Owner—Ratification of Void Lease—Want of Power. Where the owner of land, without knowledge of a lease made by an agent without authority, has rented the land to another, no power remains in him to ratify the previous unauthorized act of his agent so as to warrant a recovery of the land by his lessee from the lessee of the owner.
Id.—New Trial—Surprise—Contents of Lease—Want of Diligence —Discretion.—Where the validity of a lease for more than one year is in controversy in an action of ejectment, the failure of the plaintiff and his counsel to acquaint themselves before the end of the trial with the fact that the lease was for a period of more than one year, the lease being the foundation of the plaintiff’s action, and being in their possession and produced in evidence by them, is not a surprise which ordinary prudence could not have guarded against; and, where the affidavits upon motion for a new trial, upon the ground of suprise, do not show why application was not made for leave to amend when the defect in the document was first discovered, so as to have a reformation of the lease before the final submission of the cause, the refusal of the court to grant a new trial upon the ground of surprise is not an abuse of discretion.
Britt, C. Appeal from a judgment in favor of defendants and an order denying plaintiff's motion for a new trial. The appeal from the judgment was not taken within one year from the time of entry of the same and must be dismissed.
The action is ejectment for a tract of land in Santa Barbara county, and for the recovery of damages for loss of the use thereof. In his amended complaint plaintiff alleges himself to be the owner of an estate for years in the land therein described, “ to wit, one year from and after” April 25, 1892; that on May 14, 1892, defendants ousted him from the possession of said land, etc. The answer consists of denials of the material allegations of the complaint, and the findings of the court are as general in their statements as the pleadings themselves. [599]In this condition of the judgment-roll, of course any material conflict appearing in the evidence—which in this instance is brought up in a statement of the case on motion for a new trial—must be resolved in such manner as will sustain the general conclusions found as facts by the court. So treated, the evidence discloses that defendant A. H. Den was the owner of a larger tract of land, which included the parcel described in the complaint, and that on April 23, 1892, being about to depart for a brief period of absence from the county where the land is situated, he orally authorized one E. R. Den, his brother, to lease the whole of his land for the period of one year, to begin upon the expiration of a then subsisting lease of a part of the tract, in the month of November next to follow, the rental to be the sum of six hundred dollars, payable in advance. On April 25, 1892, E. R. Den, assuming to act as the agent of his brother, the said defendant, and having no authority except as above shown, executed in the name of A. H. Den a written lease to the plaintiff, Borderre, of a part only of the tract for the sum of two hundred and twenty-five dollars (then paid by plaintiff to said agent), for a term “ from the twenty-fifth day of April, 1892, to the first day of May, 1893.” The premises described in the instrument just mentioned are those for which plaintiff sues here, and his claim is founded on such written lease. He never had possession of the land.
About April 29, 1892, and before defendant Den had any information of the said written lease, he, in person, leased the land in suit for the period of one year to his codefendant, Orella, who it seems also had no knowledge of a lease to plaintiff, and Orella at once entered into possession. On May 9, 1892, after defendant Den had knowledge of the terms of the written lease to the plaintiff—he having then seen and read it—and knew of the payment of the specified rental by plaintiff, he sent a telegram to said E. R. Den, in the following words: “What have you done with the money you collected ?” [Signed],
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