
    [No. 7,477.
    Department One.]
    C. D. REYNOLDS v. C. R. LEWIS.
    Action for Rent—Landlord and Tenant—Estoppel—Pleading—Relief—Practice.
    Appeal from a judgment for the plaintiff in the Fifth Dis-strict Court, County of San Joaquin, Booker, J., and from an order denying a motion for a new trial, in the Superior Court of the same county. Patterson, J.
    
      Terry & McKinne, for Appellant.
    
      J. A. Louttit, for Respondent.
   The Court:

We can not say that the finding that the defendant occupied the premises in question as the tenant of the plaintiff is unsupported by the evidence. Lewis appears to have occupied the land with the permission of Reynolds, and he can not avoid the payment of the value of its use and occupation to Reynolds, on the ground that the latter had no right to lease the land to him. Although the Court found, as shown by the evidence, that the value of the use and occupation by defendant was five hundred and eighteen dollars and forty cents, the allegation of the complaint is that it was but four hundred and ninety-six dollars and eighty cents. Plaintiff was not entitled to recover more than his complaint warranted. The judgment must therefore be modified in this respect.

Cause remanded, with direction to modify the judgment in accordance with the views here expressed, and as so modified, the judgment is affirmed.  