Amos

Action for forcible detainer. Judgment went for plaintiff in treble the amount of damages sustained. The appeal is from the judgment and an order denying defendant’s motion for a new trial.

Defendant was the owner of a storeroom, one-half of which he, by a written instrument, leased to plaintiff for a term expiring April 12, 1906. Defendant occupied the other half of the storeroom and the two parts were separated by a board partition.

According to the testimony of plaintiff, he and defendant, on February 8, 1906, entered into a verbal agreement whereby defendant agreed to pay plaintiff $50 for a cash register and $50 for the unexpired term of his lease, and defendant agreed that plaintiff should have until February 18th to sell the goods he then had on hand.

Pursuant to this agreement plaintiff, on February 15th, took out and removed his shelving and moved his desk and other articles, out of the room and piled the remainder of his goods upon a counter or table placed in the middle of the room. Defendant took down the partition separating the two rooms and built his shelving in the room. Plaintiff rented a new storeroom on the 17th of February, and on the evening of that day he…

I concur in the judgment on the ground that the evidence shows that the possession and right of possession both vested in the defendant on February 15th, when the partition was tom down between the two rooms theretofore occupied by plaintiff and defendant respectively. The plaintiff put the defendant in possession of the entire premises, reserving only the right to let a portion of his goods remain until February 18th. This arrangement merely made defendant a gratuitous depositary for safety, or bailee, of plaintiff’s goods for the three days. Plaintiff was not in possession and was not entitled to the possession of the premises on February 18th; so that defendant did not on that day unlawfully or otherwise take possession of the premises. Neither did defendant forcibly detain possession from plaintiff, since the latter was not entitled to the possession.

The finding attacked (No. II) as framed is a mere conclusion of law, but considered as a finding of fact it is not sustained by the evidence. The violation of the agreement of defendant to pay for the possession cannot be made the basis of an action for forcible detainer.

Allen, P. J., concurred with Taggart, J.

A petition for…