90 P. 1073 | Cal. Ct. App. | 1907
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *628 This is an action to recover for grading and excavating done by plaintiff for defendants on fifteen acres of land in the city of Los Angeles. Judgment was for plaintiff and defendants appeal from the judgment and order denying a new trial.
The complaint alleges the cause of action in the following language: "Now comes the plaintiff and says that within the last two years past, he did grading and excavating for the defendants, for which they agreed to pay him the sum of six thousand one hundred seventy-three dollars."
By answer, counterclaim and cross-complaint defendants set out a special contract in writing between plaintiff and defendants, under which, it is alleged, all the grading and excavating involved in this action was done by plaintiff. By the terms of this contract the grading was to be done to the satisfaction of one S. O. Wood, civil engineer, and be testified to by his certificate in writing. It is alleged that plaintiff failed to perform his part of the contract in time, or at all, was unable to procure the certificate of the engineer, and abandoned the work and failed to complete it; that defendants were compelled to expend certain sums in finishing portions of the work, and suffered certain alleged damages by reason of the delay and failure of plaintiff to complete the grading according to contract.
The plaintiff's answer to the latter pleadings denies each and all the allegations mentioned, and the findings of the court expressly, or in effect, negative them all. The court also finds that plaintiff performed work in grading and excavating *629 for the defendants, and that they agreed to pay him therefor as alleged in the complaint. That all the work done by plaintiff was done on the property described in defendants' pleadings, but that it was not all done under the contract pleaded therein. The court does not segregate the amount due for work under the contract from that due for other work, but finds there is now due to plaintiff from defendants $2,019 with interest, and the judgment is for that amount.
Appellants present their ease on appeal as if the plaintiff had brought his action on the contract, and attempted to introduce evidence to excuse his failure to secure the certificate from the engineer without an allegation in his pleading to support it. They also contend that for this same reason the pleading does not support the finding of the court that "it is not true that the grading was not done in a workmanlike manner and to the satisfaction of the engineer or defendants or either of them" (following the language of the allegation in defendants' pleadings).
It is further contended that the extra work testified to by plaintiff should have been excluded from the judgment because it could only be supported by a pleading counting on aquantum meruit, and there was and is no such count in the complaint. No attack is made upon the sufficiency of the complaint, by demurrer or otherwise, and no objections were taken to the testimony introduced and no exceptions preserved to the improper admission or exclusion of evidence.
There are seventeen specifications of insufficiency of the evidence to justify the decision, nine of errors of law, occurring during the trial, assigned (all of which relate to the findings of the court), and eight particulars in which the decision is said to be against law. Most, if not all, these specifications, errors and particulars pass out of consideration upon ascertaining and determining the character of plaintiff's action, and applying the rule that this court will not look into the weight of the evidence supporting a finding if there be a substantial conflict in the evidence.
The complaint here is, in effect, an indebitatus assumpsit
count at common law, and declares upon an executed contract. While it lacks the ordinary allegations of indebtedness and that the services were rendered at defendants' request (Estee's Pleadings [Boone], 4th ed., secs. 905, 912), these *630
averments are unnecessary when the consideration as well as the promise are implied from the nature of the transaction declared on. (McFarland v. Holcomb,
Such pleading is allowable under our code (Farwell v. Murray,
The plaintiff testified, and he is corroborated by his foreman, that he fully completed the grading and excavating according to his contract, the court so finds, and a case was made that justified such a pleading. Had he failed to sustain the burden of proving a completed contract his case must have failed as to any work done under the contract; and, without aquantum meruit or other count to support a judgment upon a part performance, he could have recovered nothing. The express promise as to the work done under the executed special contract and the implied promise as to the extra work could be declared on in the one count, since they together constituted the indebtedness due from defendants to plaintiff upon contracts that were fully executed. The indebtedness had become a single claim for money due for grading and excavating. The rule here is similar to the one applied to the more familiar form of common count, an account stated. All the items and transactions preceding the stating *631
of the account become merged in the one account stated. The law implies a promise to pay this, and permits an action to be brought upon the single sum ascertained to be due, without pleading any of the items or transactions from which the result was obtained. If defendants had desired to ascertain the items of the claim, they could have obtained them under the provisions of section
The issue as to whether or not there was a waiver of the engineer's certificate was properly tried by the court under the implied allegation of the complaint that the contract had been fully executed and performed by the plaintiff, and that nothing remained to be done but to pay the money agreed to be paid. (Minor v. Baldridge,
The action, then, is neither on the special contract nor on a quantum meruit. The findings are within the pleadings, and there is evidence to sustain them all. Plaintiff testified that he completed the work under his contract according to the specifications thereof. In this he was corroborated by his foreman. As to the certificate from the engineer, he testified that it was unjustly and fraudulently detained from him by the engineer because of a personal quarrel. The testimony of the defendant Houston and his witness Gibson corroborate this in part, to the extent of establishing that they quarreled over the setting of stakes on the job. Plaintiff testified that the engineer withheld the certificate to compel the payment of a personal debt for these stakes claimed to be due from plaintiff to the engineer. While the letter was not in evidence and cannot be considered here, this statement is corroborated *632 by the letter of Mr. Wood which is made a part of the showing on the motion for a new trial.
If the trial court accepted the explanation of plaintiff, which it had a right to do, and found the withholding of the certificate was a fraud upon plaintiff and without warrant, there was evidence to sustain it, and the complaint was sufficient to support the finding without the fraud or excuse being specifically pleaded or set out. (Minor v. Baldridge,
Conceding the complaint to be insufficient for the reasons claimed by appellant, there is another rule of pleading applicable here which would still require that the findings and decision of the trial court be sustained. All the issues which it is contended the complaint should have tendered were set forth by the answer, counterclaim and cross-complaint of defendants and issue thereon joined by plaintiff's answer to the two latter pleadings. The rule is well settled that a complaint which lacks the averment of a fact essential to a cause of action may be so aided by the averment, or express denial, of that fact in the answer, as to uphold a judgment thereon. (Vance v. Anderson,
We have accepted the statement in appellant's reply brief in regard to the extension of time given on the service of statement on motion for a new trial and considered the appeal on its merits. We find no error in denying the motion for a new trial. The affidavit filed with the motion presenting the subsequently discovered letter of the engineer does not present any new evidence that would, if admitted, be *633 sufficient to justify a change in the decision to the advantage of the defendants.
No error appearing from the record, judgment and order of the trial court are affirmed.
Allen, P. J., and Shaw, J., concurred.