Flynn

Flynn brought this action against Hite to recover damages, laid at seven thousand five hundred dollars, for defendant’s failure to put him in possession of certain premises situate in the city and county of San Francisco, under an alleged lease made by one Coe, as the agent of defendant, on August 11,1890, for the term of three years from September 1, 1890, at a monthly rental of forty dollars.

At the time this alleged lease was made one William Cunniff was, and for many years had been, in possession of the property described in the lease, as the tenant of defendant, paying therefor a monthly rent, and during his tenancy had make certain improvements thereon..

Hite, the defendant in this action, afterward commenced proceedings against Cunniff to obtain restitution of said premises, and in November, 1890, it was *457 adjudged in that action that said Cunniff was rightly in possession as tenant of Hite, and that his term would not expire until May 1,1891. Flynn, the plaintiff in this action, just before the expiration of Cunniff’s term, purchased the improvements from Cunniff, and the latter surrendered possession to Flynn on May 1,1891, but arranged with Flynn that he should…