APPEAL from a judgment of the Superior Court of the County of Maricopa. Levi S. Udall, Judge. Judgment affirmed.
Messrs. Woolf & Shute, for Appellant.
Mr. Robert DeWolf and Messrs. Lewkowitz & Wein, for Appellee.
[55 Ariz. 82] LOCKWOOD, J.
James C. Estes, hereinafter called plaintiff, brought suit against Richfield Oil Company, a corporation, hereinafter called defendant, for damages for the alleged breach of a lease executed by defendant in favor of plaintiff. Defendant answered, claiming that the lease had been terminated by mutual consent, and denying any damages. The case was tried to a jury, which returned a verdict in favor of plaintiff in the sum of $1,100, and the matter was brought before us for review.
The record shows that defendant was the owner of a modern service station for the sale of gasoline, oil and auto supplies to the general public. On December 30, 1937, it made a written lease of the station to plaintiff who entered into possession of the premises and engaged in the sale of the above referred to products until May 24, 1938, when defendant retook possession thereof.
It is the contention of plaintiff, and the evidence presented by him sustains it, that he was evicted from the station by defendant, contrary to the terms of the lease.
It is the position of defendant, which is borne out by evidence offered on its behalf, that the parties by mutual consent agreed, on the date above referred to, to terminate the lease, and that it was so terminated.
There are several assignments of error, which we will take up in their order. In its reply brief defendant [55 Ariz. 83] admits that under the facts of the case, the first assignment of error must be overruled. We think its admission is correct and we desire to commend the frank manner in which it is made.
The second goes to the admission of a letter written by plaintiff to the manager of defendant some four days after the alleged eviction. This letter reads as follows:
"May 28, 1938
"Mr. H. J. ...