Friis-Hansen v. Thompson

GRIFFIN, J. Plaintiff, M. Friis-Hansen, on August 1, 1933, in writing, leased service station property in Fresno from Helen P. Thompson (hereinafter referred to as defendant) for a period of five years. He paid as advance rental $2,000, which sum was to apply on any rental which might become due in excess of $100 per month. On November 15, 1936, plaintiff was evicted because of the sale of the real property under a trust deed.

The pleadings admit the receipt of the $2,000 and that plaintiff was in arrears in rent in the sum of $59.26 when he was evicted. This action was for the return of the difference, i. e., $1,940.74.

Defendant owned the equipment at the service station and, together with one Schuler, executed a chattel mortgage thereon. It was given as security!, or as a guarantee to plain-' tiff of repayment to him for any losses that he might sustain by reason of having guaranteed the account of Schuler with the General Petroleum Corporation. Schuler was a tenant of plaintiff on the oil station premises. On October 2, 1934, defendant, due to the fact that he was losing money under the $100 per month rental required, by letter, allowed plaintiff three months’ rental for each $200 paid on the lease.

Reynold Thompson, son of the defendant and admittedly her agent in the transaction, testified that plaintiff, in the fall of 1937, in the presence of a Mr. Brown, talked to him and asked about the money still owing plaintiff on the advance under the lease; that he (Thompson) said that he would turn over all of the service station equipment to plaintiff “in return for a settlement in full of any] monies that might be owed to him in any connection with the deal, by my mother or myself or any one of us connected with it”; that they “made a settlement that way . . . that Mr. Hansen was to take all of [582]the equipment, covered by the mortgage, and also the equipment that was not covered by the mortgage, such as rest-room facilities, hoses, greasing equipment, floodlights, plumbing and pipes, in settlement in full for any money they might owe him.

On October 26, 1937, defendant wrote plaintiff a letter giving him “permission to take possession of the personal property included in the mortgage” for the purpose of enforcing the terms of the chattel mortgage. On the same day a bill of sale was drawn by Mr. Hansen and on November 22, 1937, it was signed by defendant Mrs. Thompson. The bill of sale recites: “In consideration of the sum of Six Hundred Fifty and No/100 Dollars to her in hand paid by M. FriisHansen” defendant sells certain described personal property (service station equipment) to Hansen. Admittedly, the $650 was never paid to her.