Stevenson v. Lick ( 1850 )

By the Court-,

Bennett, J.

Appeal from court of First Instance for the District of San Francisco. The complaint alleges that Lick, on the 28th day of March, 1849, leased to one Blanchard certain premises in San Francisco, on which there was an adobe house; that Blanchard, on the 15th day of September following, assigned the lease to the plaintiff; and that afterwards, “ I>. IF, Chandler cfe Co., in pursuance of some proceeding “ which they claimed authorized them, tore down said house.''1 The prayer of the complaint is, that Lick may be decreed to pay to the plaintiff the value of the house.

The defendant pleaded the general issue. The cause was tried before the court, without a jury; and, after hearing the proofs of the parties, the court rendered the following judgment: “ That the said Lick pay to the said Stevenson the sum of four “ hundred and ninety dollars, as damages to the said Stevenson “ for being deprived of the use and enjoyment of the house “ named m the plaintiff’s declaration, from the time it was torn “ down to the end of the term ; or, at the option of the plaintiff, “ to be signified in open court within a day from this time, that “ instead of the sum of four hundred and ninety dollars, as afore- “ said, that the plaintiff retain and enjoy the said house named t! in the declaration to the end of the said term ; and also that “ said defendant pay the costs and charges in this behalf ex- “ pended, and that plaintiff have execution therefor,”

The plaintiff appeals from this judgment, and asks that it may be reversed. His prayer should be granted. Having ascertained his mistake, in supposing that Lick could he made answerable for the trespasses of “ D. W. Chandler & Co.” the plaintiff seems desirous of preventing the wrong which would be done to the defendant by the execution of the judgment of the court below. We think he should not be thwarted in this laudable purpose.

It is unnecessary to examine the proceedings subsequent to the complaint, even if they were before us in an intelligible shape ; for there can be no supposable proof which would authorize a judgment in favor of the plaintiff upon the facts set forth in his complaint.

Judgment reversed, with costs.