Johnson v. Moss, No. 3,138

No. 3,138 | Cal. | Jul 1, 1873

Lead Opinion

By the Court, Belcher, J.:

The contract, as it is set out in the complaint, did not require the defendant to give to the plaintiff any written guaranty that he would- not reestablish his ferry. It is simply alleged that the plaintiff purchased of the defendant, for the consideration of one thousand five hundred dollars, the good will and franchise of the ferry, and that the defendant agreed to remove his ferryboat and fixtures, and that he would not again establish or maintain a ferry, or permit one to be established or maintained at the same point.

As against the plaintiff the complaint must be presumed to state correctly the terms of the contract. When, therefore, the plaintiff proved by his own testimony that he bought the right of way of the defendant’s ferry, and that the defendant was to give him a written guaranty that “there should be no more ferry there,” he proved a contract essentially different from the one declared on, and for that reason the motion for nonsuit should have been granted.

Moreover the case shows that the defendant discontinued his ferry for about four years, and only reestablished it after frequent requests to and refusals by the plaintiff’ to pay him the balance of the sum agreed to be paid for it. This refusal to pay was based upon the fact that the defendant declined to give a written guaranty which, as we have seen, the contract declared on did not require him to give. The plaintiff then was the first to violate the agreement, and if, under these circumstances, he suffered damage, we do not see how he can be heard to complain of it. He should have performed his part of the agreement before insisting upon performance by the defendant.

Judgment and order reversed, and cause remanded for a new trial.

Mr. Justice Rhodes did not express an opinion.

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Rehearing

[After the foregoing opinion had been delivered, a rehearing was granted. The following opinion was delivered at the April Term, 1873, and after the rehearing:]

By the Court:

The motion for nonsuit was made upon the ground that the contract had not been proved. The contract referred to was of course the contract set up- in the complaint. That had not been "proved, but a different contract. Ho objection was taken to the testimony as it was introduced, but the defendant was not thereby precluded from moving for a nonsuit, on the ground that it failed to prove the contract declared on.

In Marshall v. Ferguson, 23 Cal. 65" court="Cal." date_filed="1863-07-01" href="https://app.midpage.ai/document/marshall-v-ferguson-5435257?utm_source=webapp" opinion_id="5435257">23 Cal. 65, the motion for non-suit was upon grounds wholly different from the one sought to be availed of in this Court, and it was considered too late to raise the point here for the first time. That case is not in conflict with our former decision in this case.

We still adhere to our former opinion, and the judgment and order are, therefore, reversed and the cause remanded.