Dietz

Action to recover $755 rent reserved in a lease of real estate situate and being in Oakland, Alameda county. Verdict and judgment for defendants. Plaintiff appeals from the judgment and from an order denying his motion for a new trial.

Two points only are made for reversal: 1. That there is no evidence to justify the verdict of the jury. 2. That the court erred in permitting defendant Fugel to testify to the declaration of Stillwell, an agent of plaintiff, that he, the said Stillwell, had a letter from plaintiff authorizing him to agree to an assignment of a certain lease made by plaintiff to C. H. Kucks and Hugo Fugel, partners, and by them assigned to Fugel and Wettstein, partners.

The second point urged is wholly immaterial, as there Was no issue upon the question of the consent of plaintiff to the assignment. His complaint, after averring the assignment of the lease, proceeds as follows: “And that the plaintiff agreed, in writing, to the said assignment.”

The facts essential to an understanding of the real question involved are that plaintiff leased certain premises to C. H. Kucks and Hugo Fugel, copartners under the name of C. H. Kucks & Co., for the term of four years…