68 Cal. 363 | Cal. | 1886
— This was an action brought by Joseph Craig against J. D. Fry, Eugene L. Sullivan, and Edward J. Pringle. The complaint contains statements of two separate causes of action: the first counts upon a contract in writing, which it is alleged “ defendants and plaintiff made on the 12th of December, 1874, whereby
These averments were followed by allegations of performance by the plaintiff, acceptance, and payment by defendants upon the contract of the sum of eight thousand five hundred dollars, leaving due and unpaid a balance of two thousand five hundred dollars, which they refused to pay upon demand before the commencement of the action.
The second cause of action was for services rendered by plaintiff, between the 12th of December, 1874, and the 19th of February, 1875, for the defendants, “ by occupying and maintaining possession of, cutting trails, building roads, erecting houses, prospecting mines, etc., upon the lands and mining claims of the Los Prietos Mining Company, situate in the county of Santa Barbara, and state of California, for which the defendants promised to pay so much as the same should be reasonably worth, in United States gold coin.”
The allegations of the complaint were specifically denied; and as separate and distinct defenses it was averred: 1. That there was a misjoinder of parties plaintiff and defendants, in that Heydenfoldt, Brown, and the Santa Inez Mining Company were not joined as
“In witness whereof, the parties aforesaid have hereunto set their hands at San Francisco on the day and year aforesaid, in duplicate.
“Li the presence of “J. D. Fry.
“E. L. Sullivan.
“Edward J. Pringle.
“S. Heydeneeldt.
“H. S. Brown.
“Joseph Craig.”
This contract the plaintiff offered in evidence as proof of the allegations of the first count of his complaint. But the court, against his objection and exception, excluded the evidence, and that is assigned as error.
It will be observed that the excluded contract corresponds with the alleged contract of the plaintiff’s causa of action in date, in the object of the contract so far as it relates to the subject-matter of the action, in the compensation payable upon performance of the work, in the terms or payment, in the name of the party to whom, and the names of the parties by whom, payment was .to be made. It is true that the excluded contract contains other covenants than the one upon which the plaintiff’s action is founded; and the covenantors and the covenantees named in it are joint contracting parties, except as to the provisions for erecting a furnace upon the mining claim of the contracting parties. As to that particular of the contract, while the covenants are joint, the interest of Craig in the covenants is several. Fry, Sullivan, and Pringle promise to pay Mm — and him only
As payee of the compensation to which he was entitled under the covenant for building the furnace, Craig was the only party interested in the recovery. Although Heydenfeldt and Brown guaranteed performance of the work by Craig, they had no interest in the thing to be recovered; therefore they were not necessary parties plaintiffs to the action, nor was the Santa Inez Quicksilver Mining Company a necessary party plaintiff; and as Fry, Sullivan, and Pringle were the only promisors, the Los Prietos Mining Company was not a necessary party defendant.
The contract was admissible as evidence of the allegations of the complaint as to the performance of the work by Craig, to whom the promise of payment for it was
But it is insisted that as each of the contracting parties acted on behalf of the respective mining corporations named in the contract, the defendants were not personally bound to pay. That question, however, was not involved in the objection to the admissibility of the contract: it could not properly arise until the contract was in evidence; it was therefore a question which went to the effect and not to the admissibility of the contract as evidence. But the terms of the covenant in the contract, out of which arises the obligation to pay for the furnace, clearly manifest that the obligation of the defendants was personal, and not representative.
The court erred in excluding the evidence and in granting a nonsuit.
The statement of the case used on the hearing of a motion for a new trial is part of the record upon which an appeal from the judgment may be heard. (Code Civ. Proe., sec. 950; People v. Crane, 60 Cal. 279.)
The appeal from the order denying the motion for a new trial was taken too late, and the appeal must be dismissed.
Appeal from order dismissed.
Judgment reversed, and cause remanded for a, -new trial.
McKlnstry, J„, and. Ross, Jn concurred.
Hearing in Bank denied.