84 P. 432 | Cal. Ct. App. | 1906
The parties to this action were, on March 4, 1898, owners of adjoining tracts of swamp and overflowed lands in San Joaquin county. It was understood and agreed by all said parties that all of their said lands could and would be most effectually and advantageously reclaimed and protected by a system of levees which would include both the lands of plaintiff and defendant, and in consideration thereof, and for their mutual advantage and for the benefit and reclaiming of said lands of both parties, on March 4, 1898, entered into a written contract, wherein each agreed that he would at his own expense build a suitable levee on his own land on a line designated and described, connecting with levees on the other's land so as to protect the lands of all the parties then intended to be reclaimed, and each to keep his own levee in repair. The respective levees to be completed by December 1, 1898. After this contract had been duly signed by all the parties and on June 8, 1898, the same parties in modification of the aforesaid contract of March 4th, made and entered into a further and additional written contract, so as to change certain parts and portions of the levees described in the contract of March 4, 1898, to be constructed by each of the parties thereto, so that other lands would be embraced within said reclamation, and all to be completed by December 1, 1898. This latter contract contained a clause that it should not be binding upon either party to it unless Antoinette Naglee Burke should enter into a written contract with plaintiffs granting to them and the said Lammers the right to construct said levees over her lands. Antoinette Naglee Burke did enter into such written contract with plaintiffs. The complaint alleges that defendant failed to construct a part of the levee on his land he had by said written contract agreed to construct, and thereafter the plaintiffs built and completed his said levee at a cost to them of $5,022.22, and that payment was demanded January 20, 1900. The action was brought to recover from defendant the $5,022.22 as damages sustained by plaintiffs by reason of defendant's failure to build his levee. A general demurrer was interposed and overruled. Defendant answered, denying the allegations of the complaint and plead that "said cause of action is barred by the provisions of section
Appellant claims the right of action is on a new contract and a contract not in writing, a mere implied contract, and citesChipman v. Morrill Webster,
It is argued by appellant in his brief that the Taylor case,supra, is not in point here because the only question there was the measure of damages, and the statute of limitations was not invoked. While there was no question of that kind raised in that case, the action was for a breach of the contract and for damages by reason thereof. It was a suit on the *114 contract, exactly as is the case at bar. Appellant covenanted with plaintiffs in effect that in consideration that plaintiffs built a levee on their land which would assist in protecting his lands from the floods, he would build a like levee on his own land which would, in connection with the plaintiffs' levee, reclaim the lands of both. The contracts are pleaded, the breach shown and the claim is for damages by reason of the breach. Plaintiffs claim no other damage than the actual damage caused by the failure of the defendant to keep his agreement, viz., the cost of building the levee defendant promised to build. There seems to us to be no "implied contract" about it. It is simply a suit to recover in damages the consideration defendant contracted to pay.
Appellant argues that the contracts are part in writing and part oral, inasmuch as the dimension of the levees is not set forth therein, but is referred to the civil engineer to be determined by him. The evidence shows that defendant, on June 8th, the very day the contract was signed, knew the dimensions Atherton had fixed and then agreed to them and, in fact, defendant commenced work on his levee, and what he did was performed according to the specifications made by the civil engineer, Atherton. In support of this contention, appellant cites section 160 of Bishop on Contracts, which reads: "A contract partly in writing and partly oral is, in legal effect, an oral contract. It occurs where an incomplete writing, or one expressing only a part of what is meant, is, by oral words, rounded into the full contract; or, where there is first a written contract and afterward it is changed orally." But how can this apply to the contracts in this case? Here the thing contracted to be done is to build a levee of sufficient height and width, to be determined by the parties to the contract or by a civil engineer. We think it sufficient that the contract was certain as to parties and their respective agreement. What defendant agreed to do is ascertained therefrom to a common certainty. No question has ever arisen, so far as the record shows, between the parties as to the particular dimensions of the levees to be built. We have carefully considered all the authorities presented by appellant upon this point, as well as all others, and are unable to hold with him as to their application.
The action is upon a written contract and was commenced within four years after the right accrued, and is, therefore, *115 not barred by any section of the code pleaded by the appellant.
Judgment affirmed.
Chipman, P. J., and McLaughlin, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on March 17, 1906, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 11, 1906.