Fitzhugh

The complaint alleges that the plaintiff rented and the defendant hired from her a certain dwelling-house, 2519 Broadway, San Francisco, “for the term of six months, commencing January 15, 1896, ... for the rental of six hundred dollars, in six equal installments of one hundred dollars each, in advance, on the fifteenth day of each and every month.” The defendant denied the allegations of the complaint, and avers that the plaintiff never rented to her any house, and that she never hired any house from the plaintiff. The cause was tried by the court sitting without a jury, and the court found the facts substantially as alleged in the complaint, and gave plaintiff judgment for six hundred dollars and interest. Defendant appeals from the judgment and from the order denying her motion for a new trial.

The only issue presented for the decision of the court was, whether the defendant had hired the premises from the plaintiff, as alleged in the complaint. Upon this issue, testimony was given on behalf of the respective parties concerning the negotiations between them in regard to such hiring, and the court determined therefrom in accordance with the claim of the plaintiff. This…

I dissent. It is true that there is a conflict of evidence as to whether the terms of a lease were finally settled by an oral agreement between the plaintiff and defendant. But there is no conflict of evidence as to other facts of controlling force. The plaintiff herself testifies: “I left the matter entirely in charge of my husband. He attended to it for me.” Armed with this authority, and acting in her behalf, plaintiff’s husband caused a written lease to be prepared and presented to defendant for her signature, containing important stipulations and onerous conditions which had never been mentioned in any of the oral negotiations between plaintiff and defendant. The defendant was not then in possession of the house, and had a perfect right to assume; as she did assume, that the written lease contained the conditions upon which alone she would be permitted to take possession, and whether or not a valid oral lease had been previously concluded by plaintiff herself, this demand made by her authorized agent was a repudiation of it, upon which the defendant had a right to act, as she did, in declining to proceed further.

The plaintiff cannot, after authorizing her husband to attend…

I concur in the dissenting opinion, and further think the undisputed facts show that plaintiff had no right of action for rents at all. It was her duty, after she took possession, when the defendant refused to take the property, to do the best she could with it, and she could only recover the difference between what she was able to get out of it, and the agreed rent. This is, of course, upon the supposition that" there was a valid demise which defendant had no right to treat as rescinded,