Upon further consideration, we are of opinion that a reversal of the judgment in this ease is not necessary, and that a modification will meet the ends of justice. The finding of damage is for an amount greater than the complaint avers. Still, the finding necessarily establishes that plaintiff was damaged to the amount which he claims. The judgment may, therefore, be modified, and it will still be supported by the finding in question. All other propositions having been resolved in favor of plaintiff and respondent, it would be a hardship to compel a new trial, if that result could properly be avoided. We think this may be done, for the reasons indicated, which reasons find support in many cases: Fischer v. Blank, 138 N. Y. 669, 34 N. E. 397; Cox v. Railway Co., 77 Iowa, 478, 42 N. W. 429; Miller v. Wilkins, 79 Ga. 675, 4 S. E. 261; Frankhouser v. Cannon, 50 Kan. 621, 32 Pac. 379; Winter v. Fulstone, 20 Nev. 260, 21 Pac. 201, 687. The two final sentences of the opinion are therefore eliminated. The judgment of reversal is vacated. The court below is directed to modify its judgment by reducing the same in the sum of $239, or one-half of one cent per lineal foot for all of the piles. It is further ordered that appellant have his costs upon this appeal.
Kerry v. Pacific Marine Supply Co.
54 P. 262 | Cal. | 1898
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