Larson

The plaintiff sued the defendant to collect rent. The defendant answered and filed a counterclaim. Prom a judgment in favor of the plaintiff the defendant appealed under section 953a of the Code of Civil Procedure.

The defendant claims the court erred in awarding judgment for the full amount of the accrued rent as of the date of the trial. He claims that for at least a part of the time the plaintiff could have rented the premises to another party and that it was his duty to have done so and thus reduce the amount of the damages. But the point was not presented in the trial court. During the trial both parties stipulated that if any rent was due that then it was agreed that the plaintiff was entitled to recover for the period of two years and that a supplemental pleading might be filed which would bring the plaintiff’s claim down to date of the trial.

There were two trials. On the first trial testimony was given by Miss Clorin. The second trial commenced on Monday, December 2, 1928. On December 6, 1928, the court had taken up surrebuttal. While so engaged the defendant offered to read the testimony of Miss Clorin given on the first trial. The defendant testified that he was…