112 Cal. 197 | Cal. | 1896
This action was brought to recover four hundred and thirty-two dollars and twenty-five
Appellant’s main contention for a reversal is that the complaint does not state facts sufficient to constitute a cause. This contention cannot be maintained.
The complaint is a lengthy one and has three counts; but the main facts stated are, briefly, these: Appellant owned a lot fronting on Second street, between D and E streets, in the city of San Bernardino; and he and certain other owners of lots on said Second street, between D and E, petitioned the board of trustees of said city to cause certain street work to be done on that part of said street. In response to said petition the trustees duly adopted a resolution of intention to order certain described work to be done on said Second street, from the east line of D street to the east, line of E street; and such proceedings were regularly had that a contract was awarded to respondent’s assignors, Ramish and Marsh, who did the work, and the assessment for work against appellant’s lot was, in the first instance, four hundred and thirty-five dollars and sixty-nine cents, but upon appeal by appellant and others to the board of trustees, on account of some incidental expenses charged to which they objected, the board reduced the total amount somewhat, so that the amount assessed against appellant’s lot was four hundred and thirty-two dollars and twenty-five cents. Appellant and the other said lotowners took another appeal to the board, in which they objected that the work was not well enough done, and not in compliance with the specifications, and also made some technical objections—as, for instance, that the contractors employed men on the basis of ten instead of eight hours as a day’s work. While this appeal was pending before
The foregoing are the main facts averred in the first count of the complaint, although it contains many details not here given; and we think that it sufficiently shows a cause of action. A lotowner, without any order from the municipal government, can make a valid contract with another person to have the street and sidewalk in front of his premises improved, provided he can get permission to do so from the proper authorities; and when, as in the case at bar, he says to a person who, for any reason, had already done such work, “ if you will now complete this work in a certain way I will pay you for what you have already done,” such promise to pay is a valid promise made upon sufficient consideration* and enforceable like any othei- legal obligation. The fact that the value of the additional work in money was not. alleged does not make the complaint insufficient—par
As, however, there are three counts in the complaint, and the jury returned a general verdict for the amount prayed for, it is contended by appellant that the verdict and judgment cannot stand if any one of the counts is insufficient, because it cannot be known upon which ■count the verdict was rendered. This proposition seems to be violative of the principle that an appellant must affirmatively show error, and all intendments are in support of the judgment; but the general rule as contended for by appellant seems to have been announced by former decisions. (Hunt v. San Francisco, 11 Cal. 258; Barron v. Frink, 30 Cal. 486.) Whether or not this rule should be applied to a case like the one at bar, where it is apparent that each count is upon the same identical cause of action, it is not necessary to determine; for we think that each of the second and third counts is sufficient as a pleading against a general demurrer; and there is no special ground except that there is an improper uniting of two causes of action. The objection urged against the second count is that it does not state a sufficient consideration for appellant’s promise to pay the said amount of four hundred and thirty-two dollars and twenty-five cents. But it is alleged that
With respect to alleged errors occurring at'the trial the court did not err in allowing in evidence the written assignment to respondent by the contractors, Bamish and Marsh, of the assessment hereinbefore mentioned. The-contention is, that, as the action is founded upon a promise to pay and not upon a valid assessment, therefore an assignment of the assessment, diagram, warrant, etc., was of no consequence, and was properly objected to “on the ground that it was incompetent.” But this, assessment was the thing which appellant promised to pay, and the assignment of it was certainly not incompetent as evidence, while it certainly tended in some-degree to show an assignment of the obligation sued on.
Appellant contends that some of the instructions given to the jury were erroneous. They mostly involve those general features of the case which are noticed in other parts of this opinion; but the preliminary objection of respondent, that there are no sufficient specifications of the particulars in which they are alleged to be erroneous, must be sustained. The only exception shown in the record on the subject is the following statement by counsel for the defendant: “We except to the instructions asked for and allowed by the court on the part of the plaintiff.” This, upon its face, certainly does not “specify the particular upon which the party will rely” within the meaning of the code. It does not,
It is contended that there was no sufficient proof of the assignment to respondent of the cause of action sued on. It is true that the written assignment of the “ assessment ” does not clearly express the intent of carrying with it the promise of appellant to pay it; but this assignment, and the conduct of the assignors and assignee, together, show that such was the intent. Moreover, appellant is not now in a position to question respondent’s character as assignee. There is n,o pretense that appellant has any defense which he might have made against the assignors which he cannot make with equal force against the respondent. In such a case, clear proof of the assignment is important to a defendant only in order that a judgment against him may be full protection against any suit that might be brought on the same demand by the assignor. In White v. Steam Tug Mary Ann, 6 Cal. 471, where a similar defense was pleaded, the court said: “ It is also beyond question that a re
The only other contention of appellant necessary to be noticed is, that there was not sufficient proof by respondent of nonpayment of the demand sued on. With respect to this point it is sufficient to say that there is no affirmative plea of payment in the answer; and that the denials that any sum remains unpaid are all coupled with denials that any sum was ever due; so that the
The judgment and order denying a new trial appealed from are affirmed.
Henshaw, J., and Temple, J., concurred.
Hearing in Bank denied.