Vasik v. Speese

CONREY, P. J. The plaintiff appeals from the judgment and from an order denying his motion for a new trial. In this action the plaintiff seeks to recover damages for the breach of an alleged agreement of the respondent to lease to *130 plaintiff certain real property for a period of five years. The damages are alleged to consist in the sum of one hundred dollars paid by the plaintiff at the time of making the agreement, and in certain other sums expended and time lost by the. plaintiff in preparing for performance of the contract by him. The evidence shows that there was no written agreement or lease made or signed by the defendant, or by any person authorized in writing by the defendant to act for him. Under the rules declared in sections 1624, 2309, and 2310 of the Civil Code, the alleged contract is invalid and not binding upon the defendant. There being no valid contract, it follows of course that there can be no damages for breach thereof. It is true that the plaintiff having paid the sum of one hundred dollars to H. L. Suydam on account of the proposed lease, would be entitled in an action properly brought for that purpose to recover the money so paid, and this recovery could be had from Suydam, or from the defendant upon showing that the money was received on behalf of the defendant or applied to his use. But that is not the case presented upon this record. The complaint does not purport to demand anything except damages for the breach of an agreement, which damages, for the reasons above stated, cannot be obtained in this action. The judgment and order are affirmed. James, J., and Shaw, J., concurred. A petition for a rehearing of this cause was denied by the district court of appeal on January 2, 1915, 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 February 1, 1915.