I concur in the judgment on the ground that the evidence shows that the possession and right of possession both vested in the defendant on February 15th, when the partition was torn down between the two rooms theretofore occupied by plaintiff and defendant respectively. The plaintiff put the defendant in possession of the entire premises, reserving only the right to let a portion of his goods remain until February 18th. This arrangement merely made defendant a gratuitous depositary for safety, or bailee, of plaintiff's goods for the three days. Plaintiff was not in possession and was not entitled to the possession of the premises on February 18th; so that defendant did not on that day unlawfully or otherwise take possession of the premises. Neither did defendant forcibly detain possession from plaintiff, since the latter was not entitled to the possession.
The finding attacked (No. II) as framed is a mere conclusion of law, but considered as a finding of fact it is not sustained by the evidence. The violation of the agreement of defendant to pay for the possession cannot be made the basis of an action for forcible detainer.
Allen, P. J., concurred with Taggart, J.
A petition for a rehearing of this cause was denied by the district court of appeal on February 19, 1908, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 19, 1908. *Page 436