110 Cal. 259 | Cal. | 1895
Plaintiff alleged in his complaint that he employed defendant to bud a quantity of young fruit trees; that defendant agreed to bud the same in a careful and skillful manner, and thereupon entered upon the execution of the contract and budded the trees, but so negligently performed the work in certain specified particulars that plaintiff suffered damage to the amount of eighteen hundred and fifty-eight dollars and fifty cents, for which sum he demanded judgment. Defendant admitted in his answer the fact of his employment by plaintiff and that he budded the trees, but denied
After trial the court found all the issues in favor of the defendant, and awarded him judgment against plaintiff for the amount claimed by him (less the sum of five dollars, cost of protest of the draft) and costs of the action.
Plaintiff appeals from the judgment; and the point
Of course, if the matters set up by defendant consti-¡ tute a cause of action in his favor properly cognizable by the superior court, either as a counterclaim or a cross-complaint in this suit, the judgment must be upheld.
The transaction between the parties on November 1, 1892, by which the compensation to be rendered defendant was fixed in money and trees, and the time of performance by plaintiff was enlarged, amounted to an agreed statement of the account of defendant for budding the trees (Baird v. Crank, 98 Cal. 293, 297), and even something further. It was a new contract (Civ. Code, 1531, 1697) for which the original contract, or the performance thereof by defendant, furnished the consideration (Auzerais v. Naglee, 74 Cal. 60), and became, in the absence of legal impeachment, in itself an agreement, conclusive on both parties that, as the net result of such performance, the defendant was entitled to receive the compensation then fixed. On such new contract an action would lie in defendant’s favor (Green v. Thornton, 96 Cal. 67), and would be properly brought on the written instruments then executed by plaintiff. (San Jose Savings Bank v. Stone, 59 Cal. 183.)
The original contract was suspended, if not extinguished (Civ. Code, 1531, 1682, 1697); the plaintiff, while the new compact between himself and defendant remained in force, could maintain no action for any breach of duty by defendant under the former. His only proper course, if such breach had occurred, was to
But they show a cause of action in his favor “ arising upon contract”; and it is a different contract from that described in the plaintiff’s complaint; and hence is rightly pleaded as a counterclaim under subdivision 2 of said section 438, provided the court had jurisdiction to entertain it.
The constitution of the state allows to the superior court jurisdiction in all “ cases at law .... in which the demand .... amounts to three hundred dollars.” (Const., art. VI, sec. 5.) This court has held that, “the demand spoken of in the constitution is a demand for judgment, evidenced by the prayer of a complaint, and a statement of facts which can uphold the
Beyond question, if the defendant had commenced an action on the matters exhibited in his setoff, he must have done so in an inferior court, and in such action the plaintiff could not have set up any claim arising on contract in his, plaintiff's, favor, unless below three hundred dollars in amount. (Code Civ. Proc., 855; Maxfield v. Johnson, 30 Cal. 545.) It scarcely seems probable that the makers of the law designed to provide in such a case that the defendant may have the right of setoff in the superior court merely because he is defendant, when, if he had commenced his action—as he must have done if he had commenced at all—in a court having jurisdiction of demands less than three hundred dollars, the plaintiff would have been debarred the like privilege.
The counterclaim set up in Webster v. San Pedro etc. Co., 101 Cal. 326, seems to have been properly referable to subdivision 1 of section 438 of the Code of Civil Procedure; and the same is probably true of that mentioned in Clark v. Taylor, 91 Cal. 552. Nothing is decided in either of those cases contrary to the view here . stated.
Our conclusion is reached with less reluctance, because the defendant may yet sue and recover in the proper court the sums due to him for breach of the plaintiff’s contract, evidenced by the written instruments of November 1, 1892.
The judgment should be modified by striking there?
Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment is modified by striking therefrom the recovery of one hundred and ninety-nine dollars and seventy-five cents with interest thereon allowed to defendant, and as so modified the same is affirmed.
McFarland, J., Harrison, J.,
Temple, J., Garoutte, J.