106 Cal. 594 | Cal. | 1895
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.
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],
1. Obviously the agent transcended his authority in executing the written lease; being empowered to let the whole tract for one year, commencing in November, 1892, at a rental of six hundred dollars, he could not made a lease, either oral or written, obligatory on his principal, for a portion only of the land, at a rental of two hundred and twenty -five dollars for a term exceeding one year, commencing in April, 1892. Besides, the lease being for a period in excess of one year, and the authority of the agent not being in writing, it was, for that further reason, invalid. , (Civ. Code, sec. 1624, subd. 5; Folsom v. Perrin, 2 Cal. 603.) Nor could it, as claimed by appellant, even if it pursued the terms of the agent’s oral authorization, operate as a valid lease for one year. (See Talamo v. Spitzmiller, 120 N. Y. 37; 17 Am. St. Rep. 607.) “It is difficult to perceive how such a contract, declared to be void by the statute, can be held to be valid for a single hour.” (Thomas v. Nelson, 69 N. Y. 121.)
2. But the appellant maintains that the lease was ratified by defendant Den. Such alleged ratification is asserted on the effect of the telegram sent by him to his agent on May 9,1892, and on certain oral declarations attributed to him, but which he testified that he did not make. We see no ground for holding that the lease, was ratified. When defendant sent said message he had already rented the land to Orella, and no power remained in him to ratify the previous unauthorized act of his agent so as to warrant a recovery of the land from Orella. (Civ. Code, secs. 2312, 2313.) There was no attempt to ratify the lease “ in the manner that would have been necessary to confer an original authority,” nor any acceptance of the benefit of the same. (Civ. Code, sec. 2310.)
Assuming, without deciding, that we are authorized to consider the affidavits by which the alleged surprise is made to appear, it is yet clear that the failure of the plaintiff and his counsel to acquaint themselves before the end of the trial with that important clause of the comparatively brief instrument which is the foundation of the plaintiff’s action, it being in their possession and produced in evidence by them, was not “ surprise which ordinary prudence could not have guarded against.” (Code Civ. Proc., sec. 657.) Nor is it shown why application for leave to amend, if that was desired, was not made when the defect in the document was first discovered, and before the submission of the case; certainly the discretion allowed to the trial court in passing upon applications for new trial on such ground has not been abused in this case.
There is no merit in the appeal. The appeal from the judgment should be dismissed, and the order denying the motion for a new trial should be affirmed.
For the reasons given in the foregoing opinion the appeal from the judgment is dismissed and the order denying plaintiff's motion for a new trial is affirmed.
Harrison, J., Van Fleet, J., Garoutte, J.