Schmidt v. Mesmer

McFarland, J. This action was brought to recover damages for an alleged false and fraudulent represénta[268]tion made by the defendant to the plaintiffs with respect to a certain lease executed between the parties. The jury found a verdict for the defendant, and judgment was entered accordingly. Plaintiffs appeal from the judgment and from an order denying a motion for a new trial.

On December 30, 1893, the defendant was the owner of certain real property in Los Angeles, described generally as the United States Hotel. On that day the parties executed a written instrument, by which the defendant leased said property to plaintiffs for a term of three years, commencing January 1, 1894, at the monthly rent of eight hundred dollars, payable on the first day of each month, and the plaintiffs agreed to pay said sum of money as rent on the first day of each month, and entered into certain other covenants not necessary to be here mentioned. The upper floors of the building on the premises had been used, and were intended to be used, as a hotel; and there were two storerooms on the first story, and also rooms used as a bar-room, barber shop, laundry, etc., which were included in the lease.

The gist of the complaint is that the defendant falsely and fraudulently represented to plaintiffs that the income of the hotel for the year preceding had been at least seven hundred and fifty dollars a month, whereas, in truth, said income had not exceeded the sum of three hundred and fifty dollars a month. There was a conflict of evidence upon the point as to whether or not defendant had ever made said representation. There was also evidence that on the day upon which the lease was executed the son of the defendant, who was managing the hotel, informed the plaintiffs that they could not afford to pay eight hundred dollars a month for the property, and showed them the register and other books of the hotel, which were to some extent examined by one of the plaintiffs. There was a conflict of evidence as to whether this information was given to plaintiffs an hour [269]or two before the execution of the lease, or an hour or two afterward; but it was given on that day, and before the plaintiffs took possession of the premises.

Quite a number of instructions were given by the court to the jury as to the effect of this notice given to them by the said son of the defendant, and as to the duty of plaintiffs, under the circumstances, to have informed themselves fully upon the subject, and also as to the correct measure of damages; and it is upon these instructions, and certain rulings made by the court with respect to evidence upon these subjects, that appellants base their contention for reversal. We do not think, however, that it is necessary for us to pass definitely upon the alleged errors in these respects, because, under our view of the case, the acts of the appellants, as hereinafter stated, constituted a waiver of the alleged fraud, if any such there was, and prevent appellants from recovering in this action, without regard to said alleged errors.