Ohsaki

Defendant appeals from a judgment of six thousand dollars upon the ground that the court applied the wrong measure of damages.

Defendant leased to plaintiffs a tract of rice land in Sutter County for the term of three cropping seasons. Plaintiffs paid six thousand dollars rent in advance which was, as the lease stated, the rent for all the first year and part of the second. Owing to defendant’s failure to pay when due a deed of trust which he had previously executed, the land was sold under foreclosure proceedings. The purchaser, as the new owner, asserted his rights superior to the rights of plaintiffs under their lease and plaintiffs thereupon surrendered to him. The lease was executed November 16, 1920. The deed of trust fell due January 1, 1921, and title passed out of defendant by foreclosure May 7, 1921. The plaintiffs, therefore, obtained no benefit whatever from the lease, as they did not have time to plant a crop for the first cropping season. The plaintiffs served on defendant proper notice of rescission of the lease and demanded back the six thousand dollars upon the ground of failure of consideration. Judgment was for plaintiffs upon this theory.

It is the claim of…