182 P. 467 | Cal. Ct. App. | 1919
This is an appeal from a judgment for the plaintiff in a suit to recover damages from the defendant on account of breach of warranty of authority to act as agent. The facts pertinent to a discussion of appellant's contentions are that the plaintiff and H. Roscoe Havens, president of the M. H. Blake Estate Company, entered into a contract some time in April, 1910, whereby the plaintiff was to perform certain services, for which the Estate Company was to pay two thousand five hundred dollars. Later, when plaintiff sued the Estate Company for payment of this amount, the Estate Company denied the authority of the defendant to act as its agent in making said contract, and the plaintiff was nonsuited. He then brought the present action against the defendant for breach of warranty of authority. The exact nature of the services to be rendered by the plaintiff is the subject of dispute. *224 The plaintiff claims that he was to secure the signature of Hale Brothers to a certain agreement in writing, which is set out in the findings, and which is an offer to lease to Hale Brothers certain real property belonging to the Estate Company, and particularly described therein, at a specified monthly rental, with an agreement on the part of the Estate Company to place improvements of the value of twenty thousand dollars upon the property, and also embodying other details relating to the respective obligations and rights of the parties. The defendant contends that the contract was that the plaintiff should not only secure the signature of Hale Brothers to this agreement, but should also secure their acceptance of another condition, which was not embodied in the written agreement, to the effect that Hale Brothers should occupy the leased premises, or a substantial part thereof, with their own business, and that this latter portion of his contract plaintiff failed to perform. The finding on this point is in favor of the plaintiff, and supports the judgment, and it is this finding which is a special subject of attack by the appellant.[1] Appellant contends that the agreement which Hale Brothers signed was an incomplete agreement and that their acceptance was never secured to a complete agreement for a lease. We think the agreement to which the plaintiff procured the assent of Hale Brothers is in all respects a complete agreement for a lease. It embodies all necessary terms of a lease, and was apparently satisfactory to the Estate Company, except that it contained no provision against subletting. It is not sufficient to say it might have contained a covenant against subletting or other conditions; the other conditions it might have contained are limitless, but this does not affect its validity or sufficiency to create the relation of landlord and tenant as between the Estate Company and Hale Brothers.
Appellant points out certain contradictions in the testimony of the plaintiff and wishes this court to decide that, because of these contradictions, his testimony in support of the facts found is without weight and insufficient to justify the finding. [2] This court is not concerned with what it may believe is a preponderance of the evidence. We may go no further in our examination of the evidence than is necessary to determine that a substantial conflict exists. In the present case there appears to be some contradiction *225 between the testimony of the plaintiff given in his action against the Estate Company (which was considered in evidence in the present action by stipulation of the parties) and his testimony given in the present action. It appears that the testimony in the second action was given about four years after the transactions in question occurred; that the dealings between plaintiff and defendant upon which the action is based included negotiations covering a period of about a week or more; that there were several conversations between the parties at which numerous details were discussed, and it would seem quite natural if some of the details of these conversations had escaped the memory of the plaintiff after a period of several years. Under the circumstances, if some contradictions and inconsistencies appear in his testimony, we think these should not have the effect of nullifying his entire testimony. The trial court had before it all the inconsistencies and conflicts in the testimony, and we will presume that they were weighed against the plaintiff in considering the evidence as a whole and arriving at the finding concerning the terms of the contract between plaintiff and the defendant as president of the Estate Company. We cannot disturb this finding.
The action in the present case is founded upon section
[4] The only other point which remains to be considered is the question of damages. These are defined by section
Judgment affirmed.
Brittain, J., and Haven, Jr., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on June 13, 1919, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 14, 1919.
All the Justices concurred, except Melvin, J., and Olney, J., who were absent. *227