McComish

Plaintiff brought this action to recover possession of 235 opera-chairs, a lot of scenery, stage fixtures, and an electric sign. Prom a judgment in favor of defendant the plaintiff appeals.

On the twelfth day of March, 1912, the plaintiff gave to the defendant a lease of a room in a building in the town of Colusa, known as the “Herald Building,” to be used for the purpose of moving-picture entertainments. At the time the lease was executed, the defendant was in possession of the premises and had been for some time under prior contract with plaintiff. The lease was for a term ending December 31, 1913, with the option to the defendant of a two years’ extension. The rental was thirty-five dollars per month. At the date of the lease there was certain personal property in the room consisting of chairs, scenery, and other articles used in the moving-picture business, which concededly belonged to the defendant. The lease stated that this furniture and fixtures were pledged to the plaintiff for the faithful performance of the conditions of the lease. Defendant exercised his option and held under this lease until December 31st, 1915. Thereafter he held the premises and conducted the…

I concur in the judgment and also in the proposition, stated by the acting presiding justice, that the point made by appellant that the parol testimony disclosing the purpose for which the new or additional lease was given to the defendant is incompetent and, therefore, was inadmissible, is not reviewable because it was not objected to and hence the objection must be deemed to have been waived. But I do not think that that testimony was incompetent. The terms of the additional lease were these, to wit: That the defendant might use and occupy the room known as the “Gem Theater” situated in the Herald Building, in the town of Colusa, for the term of one month, beginning on the first day of September, 1918, and ending September 30, 1918, for the sum or rental of sixty dollars for said month. These terms could not, of course, be changed by parol. The defendant could not have proved by parol, except under a plea of fraud of mistake, that the lease was for a longer term than one month or that the rental was less than that specified in the writing. But the testimony referred to was not offered for that purpose. It was not offered to vary the contract as it was written in any respect or…