Felton v. Millard

The Court. Upon due consideration, after argument on rehearing, we adhere to our former opinion; and for reasons therein given, the judgment and order are affirmed.

The following is the opinion above referred to, rendered in Department Two on the 22d of April, 1889: —

McFarland, J. This is an action of unlawful detainer. The verdict and judgment were for plaintiff. Defendant appeals from the judgment, and from an order denying a new trial.

1. Counsel for appellant argues very strenuously and [541]ingeniously that the evidence was not sufficient to establish the existence of a lease between plaintiff and defendant. But there certainly was evidence going directly to that point, and the question was fairly put to the jury. The nonsuit was properly denied.

2. Appellant objects to the validity of the notice to quit because it was not signed by respondent personally, the signature being “ 0. W. Felton, by H. G-. Platt, Att’y.” But the notice purported to come from respondent. It was proven at the trial that Platt had authority to sign it; no written authorization was necessary (Civ. Code, sec. 2309); and appellant questioned the authority (if he did question it) at his own risk.

3. The most important point in the case arises upon the refusal of the court to allow the introduction of certain evidence offered by defendant. It is averred in the complaint that from February 1, 1883, to November 10, 1885, defendant held the premises in controversy from year to year under a verbal lease from plaintiff; and that on said November 10, 1885, the said lease was terminated by mutual agreement of the parties.- The answer denied that there had ever been any lease. This denial raised the main question of fact before the jury and it was determined by them against the defendant. Defendant, when on the stand as a witness for himself, after denying the existence of any lease, testified that he had been in possession of the land since 1854. He then offered to prove certain affirmative matters set up in his answer, the gist or substance of which was, that he was the owner of the land, and had been for over twenty-nine years, and that plaintiff was merely a mortgagee under a deed from defendant, absolute on its face, but intended as a mortgage. Objection to this evidence was sustained, and defendant excepted.

Waiving the question whether defendant offered to prove the facts which he sought to get before the court by appropriate evidence (Bostwick v. Mahoney, 73 Cal.