Oppenheimer

Plaintiff had judgment. Defendant made a motion for a new trial, which was denied, and this appeal is from the judgment and order.

On the thirty-first day of October, 1900, the defendant, by a written lease, let to the plaintiff the premises known as the Clunie Opera House in the city of Sacramento for the term of five years from and after the first day of December, 1900, at the rental of five hundred and fifty dollars per month, payable monthly in advance. Plaintiff entered into possession of the premises and paid the rent each month, as provided for in the lease, up to the latter part of April, 1901, at which time he claims to have rescinded the lease.

He commenced this action January 10, 1902, for the purpose of having the lease delivered up and canceled, to recover judgment for three thousand dollars and interest, being the amount deposited with defendant as security for the rent to become due, and for two thousand dollars claimed as damages.

It is alleged in the complaint that defendant falsely and fraudulently and with intent to deceive plaintiff represented that the premises “were in good condition and repair and safe and suitable for assembling large numbers of people”;…