Christensen v. Jessen

HAYNES, C. This action was commenced August 29, 1891, by Peter J. Christensen against H. P. Jessen, to recover damages alleged' to have been sustained by the plaintiff by reason of fraudulent misrepresentations made to him by defendant. All the issues, except that arising upon defendant’s plea of the statute of limitations, were submitted to a jury, which found a verdict in favor of the plaintiff for $2,000 damages; and, the court having found for the plaintiff upon the plea of the statute of limitations, judgment was entered upon the verdict, and defendant appeals therefrom, and from an order denying his motion for a new trial. Appellant concedes that the evidence was conflicting, and that the verdict of the jury upon the facts must be accepted, leaving only questions of law to be considered. Peter J. Christensen died since the trial, and his executrix has been duly substituted; but, for convenience, he will be referred to as plaintiff and respondent in this opinion, as though still in life.

Plaintiff was the owner of a salt claim in Alameda county. In October, 1883, he executed to defendant a lease of the same for the term of five years, commencing January 1, 1884, at an annual rent of $500, with the privilege of a renewal for five years more on the same terms; but the lease prohibited the defendant from letting or underletting the whole or any part of the premises without the written consent of the plaintiff. The defendant also owned a salt claim adjoining that of plaintiff, and was the lessee of another claim owned by Peter Mattison. In the early part of 1887 the Union Pacific Salt' Company, the American Salt Company, B. F. Barton, E. M. Block, John A. Plummer and Charles A. Plummer formed a combination or company for the purpose of controlling all the salt claims in that locality, and, among them, those controlled by defendant. The combination made defendant a satisfactory offer for his own and the Mattison claim, but that offer was conditioned upon securing plaintiff’s claim also, to accomplish which plaintiff’s written consent was necessary, and the company also desired to have the option of a second renewal of the lease from plaintiff for the term of five years. On March 10, 1887, the defendant called on plaintiff, and informed him that the company wanted to secure his (plaintiff’s) salt claim, but that he (defendant) had no right to lease it. There was then about two years of the original term of five years of defendant’s lease unexpired, and plaintiff said, [47]“If the company takes it, I want $800, and you can have the benefit of the two years, ’ ’ to which the defendant replied, “All right.” Defendant then called on Mr. Plummer, a member of the company, and informed him of plaintiff’s terms, and he said he would present it to the other parties. Defendant, however, did not wait to know whether the terms proposed would be accepted, but went to San Francisco, where his lease was, and had the following consent indorsed upon it: “I hereby consent that said Hans P. Jessen may underlet or assign this lease to the Union Pacific Salt Co., American Salt Co., B. F. Barton, E. M. Block, John A. Plummer, and Charles A. Plummer. It is further agreed that said Jessen, or his assigns, shall have the privilege of renewing this lease at the expiration of the first renewal thereof. If such first renewal should be made, the second renewal to be for the term ending on the 18th day of March, 1897.” The defendant, on his way to Oakland, read the indorsement, and, as he testified, concluded plaintiff “would not stand that,” and called upon an attorney in Oakland, and had the following added to the indorsement above quoted: 1 ‘ The annual rent for the term commencing at the second renewal to be eight hundred dollars.” The defendant took the lease, with the said indorsement of consent upon it, to the plaintiff, who tried to read it, but was unable to do so, so as to understand it, whereupon the' defendant read it to him, and plaintiff asked, “After the two years, then, I can go and collect my $800 from the company?” and defendant replied, “Yes, that is what it says,” and plaintiff signed it. Under the instructions of the court, to which no exceptions were taken, the verdict of the jury is conclusive as to the relations of these parties, and the right of the plaintiff to rely upon the representations made to him by defendant, and hence the evidence upon that point need not be stated. For the two years remaining of the original term, defendant collected the rent, and paid plaintiff annually $500; plaintiff supposing that defendant received $800, and retained $300, according to the said proposition. In January, 1889, the original term having expired, and the first renewal begun, defendant told plaintiff he could go and collect his rent from the company, and then further told him: “There is a misunderstanding in the lease. It only says $500.” Plaintiff asked whether he had not collected $800, and he said1, “No, I let him have mine for the same I had it,”