Borderre v. Den

Britt, C. 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. [599] In this condition of the judgment-roll, of course any material conflict appearing in the evidence—which in this instance is brought up in a statement of the case on motion for a new trial—must be resolved in such manner as will sustain the general conclusions found as facts by the court. So treated, the evidence discloses that defendant A. H. Den was the owner of a larger tract of land, which included the parcel described in the complaint, and that on April 23, 1892, being about to depart for a brief period of absence from the county where the land is situated, he orally authorized one E. R. Den, his brother, to lease the whole of his land for the period of one year, to begin upon the expiration of a then subsisting lease of a part of the tract, in the month of November next to follow, the rental to be the sum of six hundred dollars, payable in advance. On April 25, 1892, E. R. Den, assuming to act as the agent of his brother, the said defendant, and having no authority except as above shown, executed in the name of A. H. Den a written lease to the plaintiff, Borderre, of a part only of the tract for the sum of two hundred and twenty-five dollars (then paid by plaintiff to said agent), for a term “ from the twenty-fifth day of April, 1892, to the first day of May, 1893.” The premises described in the instrument just mentioned are those for which plaintiff sues here, and his claim is founded on such written lease. He never had possession of the land. 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], [600] “A. H. Den.” To which E. R. Den replied by wire: “Your money is safe.” But a few days later, on the occasion of a personal interview between the brothers, the defendant Den refused to receive such money, or any part of it, though it was then tendered to him. 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.) [601] 3. It is further contended that the court should have granted the motion for a new trial on the ground of surprise suffered by plaintiff; the alleged surprise being predicated of the facts that the plaintiff and said E. B. Den both supposed that the written lease was for a term of one year only—from May 1, 1892, to May 1, 1893— they having agreed verbally on such a contract, and believing that it had been so drawn, and that they did not discover any thing to the contrary until after the trial of this action, and that plaintiff’s counsel had not read the entire lease, and so did not discover that it embraced a term in excess of one year until near the conclusion of the oral argument; that if he had known of that circumstance he would have pleaded the mistake in his complaint—we suppose with a view to reformation of the instrument, and that he was misled by the action of the court in admitting the document in evidence over the objections of defendants, and afterward holding it to be invalid. 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. [602] Vanclief, C., and Haynes, C., concurred. 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.