Fitzhugh v. Baird

THE COURT. The complaint alleges that the plaintiff rented and the defendant hired from her a certain dwelling-house, 2519 Broadway, San Francisco, “for the term of six months, commencing January 15, 1896, ... for the rental of six hundred dollars, in six equal installments of one hundred dollars each, in advance, on the fifteenth day of each and every month.” The defendant denied the allegations of the complaint, and avers that the plaintiff never rented to her any house, and that she never hired any house from the plaintiff. The cause was tried by the court sitting without a jury, and the court found the facts substantially as alleged in the complaint, and gave plaintiff judgment for six hundred dollars and interest. Defendant appeals from the judgment and from the order denying her motion for a new trial. The only issue presented for the decision of the court was, whether the defendant had hired the premises from the plaintiff, as alleged in the complaint. Upon this issue, testimony was given on behalf of the respective parties concerning the negotiations between them in regard to such hiring, and the court determined therefrom in accordance with the claim of the plaintiff. This testimony was highly conflicting, and the decision of the trial court must be accepted as correct. The proposition of the appellant that she is not liable to the plaintiff for the full amount of the rent agreed upon, inasmuch as the plaintiff was not deprived of the possession of the premises, and did in fact occupy them a portion of the time, is untenable. There was no issue of this nature before the court, *572 the only issue being whether the defendant had made a contract with the plaintiff for the term and at the rent named in the complaint. The defendant did not set up in her answer any claim for recoupment of the plaintiff’s demand, nor was any evidence presented at the trial that the occupancy of the premises by the plaintiff for a portion of the time had been of any value to her. The testimony of the plaintiff was to the effect that her occupancy of the house was for the purpose of protecting it and its contents from injury or loss in case it should have remained vacant, thus relieving the defendant of an obligation which rested upon her by virtue of her contract. No error was committed in overruling the objection to the question asked of the appellant concerning the advice of her physician about moving into the house. The question was proper cross-examination, and it was not shown to be in any respect privileged. The judgment^ and order are affirmed.