113 Cal. 97 | Cal. | 1896
The allegations of the complaint in this •action are as follows:
“ That the defendant is indebted to the plaintiff in the sum of five hundred dollars, United States gold*99 coin, heretofore deposited by plaintiff with the defendant, to and for the use of this plaintiff, and which said sum the defendant promised to repay to plaintiff, on demand; that, although thereto requested, defendant has neglected and refused, and still neglects and refuses, to pay over the said sum of five hundred dollars to this plaintiff.” The prayer was for judgment for said sum, with interest and costs.
A general demurrer to the complaint was overruled, and the defendant answered, and, 1. Specifically denied the several averments of the complaint; 2. Alleged the deposit of said sum under an agreement in writing executed by the parties to the action, a copy of which is attached to the answer, and which is as follows:
EXHIBIT A.
“ This agreement, made this 28th day of September, 1890, between P. G. Somps, of San Francisco, the party of the first part, and Jean Barrere, of the same plS.ce, the party of the second part, witnesseth: “ Said party of the second part does hereby agree to purchase soda water from said party of the first part at the rate of seventy-five cents per dozen, and to resell the same; and said party of the first part does hereby guarantee to said party of the second part at least twenty dollars per week profit on such resales made by him, provided said party of the second part devotes his whole time to this business.
“And in consideration of said party of the second part purchasing from said party of the first part exclusively all soda water to be resold by him, said party of the first part does hereby hire unto said party of the second part horses and wagon and necessary syphon bottles for facilitating the sale of soda water.
“ The party of the first part shall have the right to terminate this contract at any time, but said party of the second part cannot terminate it except on thirty (30) days’ notice; and, at such termination, said party of the second part does hereby agree to make a full dis*100 closure of the names and addresses of all his customers to said party of the first part.
“ And as security for the faithful performance of his part of this contract, and to save and hold harmless said party of the first part from all damages arising by or through the acts of said party of the second part, and to secure the return of all property hired by said party of the second part, as aforesaid, in good order and condition, said party of the second part does hereby deposit with said party of the first part the sum of five hundred dollars.
“In witness whereof the parties hereto have hereunto set their hands and seals this day of September, 1890.
P. G Somps,
Jean Barrbre.
“Witness: T. Carrolot.”
The second defense, after alleging the substance of the contract, alleged that plaintiff received from the defendant, under said agreement, one horse of the value of one hundred and twenty-five dollars, one wagon, and one hundred and sixty bottles of the value of one dollar each; that plaintiff failed to return said horse and said bottles, and damaged said wagon while in his possession to the extent of ninety-seven dollars and fifty cents, and on the termination of said contract failed and neglected to disclose to defendant the names and addresses of his customers, whereby said customers were lost to defend-, ant, to his damage in the further sum of five hundred dollars, and stated the aggregate of his damages at eight hundred and eighty-two dollars and fifty cents. The same facts were also alleged by way of counterclaim.
A jury trial was had, and a verdict returned for the plaintiff for said sum of five hundred dollars, with interest from September 28, 1890, the date of said agreement, and defendant appeals from the judgment entered thereon, and from an order denying his motion for a new trial.
The plaintiff was called and examined as a witness on his own behalf, and, during his examination in chief, he
The same question was again made by the defendant by motion for a nonsuit, the plaintiff having rested at the conclusion of his examination. In his motion for a nonsuit counsel for defendant contended that there was a variance between the pleadings and proofs; that plaintiff should have pleaded the contract and the modifications of it. This motion was denied, and defendant excepted.
■ While the common counts are in some cases sufficient under the code, it is safe to say they are insufficient in those cases where they were insufficient under the old system of pleading. “Where a special contract is still open, and has not been rescinded by mutual consent, it is necessary to declare specially.” (1 Chitty on Pleading, 368.) This is not a case where a promise to repay upon
The contention of plaintiff that the contract created only the relation of employer and employee, and not that of vendor and vendee as to the soda water, and that he was not a hirer of the horses, wagons, and syphon bottles, is immaterial so far as the questions above considered are concerned, as the security provided for in the contract was applicable to whatever relation was in fact created by it, and covered every injury the defendant may have suffered from the failure of the plaintiff to perform it.
The conclusion we have reached renders a reversal necessary, and relieves us from the necessity of considering other questions made by appellant except so far as they may arise upon a new trial.
1. Interest on the deposit is not recoverable from the date of the deposit. The deposit was a condition upon which the contract was entered into, and, in the absence of a special provision in the agreement that defendant should pay interest, the profits or compensation plaintiff was to receive under the contract covered and included any incidental benefit the defendant may have received from its use until it became payable to plaintiff; but the plaintiff is entitled to interest upon the amount he may be entitled to recover, from the date of his demand for repayment.
2. Whether the terms of the agreement and the conduct of the parties thereunder constituted the relation of vendor and purchaser of the soda water, or that of employer and employee, is of little importance, as there appears to be no controversy between the parties as to profit or compensation; and, as to plaintiff’s liability for the loss of the horse and bottles and injury to the wagon, we think it must depend upon the construction
The court below instructed the jury, in effect, that the written contract was nothing more than an agreement between master and servant, and that it was the duty of the plaintiff, as an employee, to use reasonable and ordinary care in the preservation of his master’s property intrusted to him. The construction thus given is that which would have been required if the following clause had been omitted from the contract, viz: “And to secure the return of all property hired by said party of the second part, as aforesaid, in good order and condition, said party of the second part does -hereby deposit with said party of the first part the sum of five •hundred dollars”; and, therefore, unless this language increases plaintiff’s liability beyond that which the law attaches to a bailment for hire, or the responsibility of an employee for the want of ordinary care, its insertion in the contract was idle and meaningless. This cannot be presumed. It was intended to have some effect, and we see nothing in the contract itself, or in the circumstances surrounding the parties at the time it was made, to change the natural meaning of the clause in question. It is not an answer to defendant’s contention to say that it is a hardship upon the plaintiff to be compelled to pay for losses not attributable to his want of ordinary care. As was said in Wilmington Trans. Co. v. O’Neil, 98 Cal. 5: “Where a party has expressly undertaken, without qualification, to do anything not naturally or necessarily impossible under all circumstances, and he does not do it, he must 'make compensation in damages, though the performance was rendered impracticable, or even impossible, by some unforeseen cause
The judgment and order appealed from should be reversed, with leave to both parties to amend their pleadings.
Britt, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, with leave to both parties to amend their pleadings.
Henshaw, J., McFarland, J., Temple, J.
Hearing in Bank denied.