122 P. 847 | Cal. | 1912
This is the second appeal in this case. The action was for the breach of a contract of employment and although this court held that the conduct of the defendants was such as to estop them from availing themselves of the statute of frauds in defense of the oral contract, provided Herman Oelrichs had written authority to bind his wife, Theresa A. Oelrichs, and her sister, Virginia Vanderbilt, the judgment in favor of the plaintiff was reversed because the record did not disclose such power. (Seymour v.Oelrichs, *320
Appellants call our attention first to the asserted error in granting a judgment for interest from the date of the filing of the complaint. It is conceded that plaintiff's right to recover damages vested in him on the day of his discharge from the service of appellants, but appellants contend that at no time prior to the judgment were these damages certain or capable of being made certain by calculation; that therefore section
Appellants assert that the powers of attorney are not sufficient to authorize such a contract of employment as respondent *322
pleaded and sought to prove. The appellants seek to apply to the two powers of attorney here (which by the way are practically identical in form) the rule laid down in such cases as Quay v.Presidio Ferries R.R. Co.,
There is no merit in appellants' statement that the proof does not sustain the allegations of the complaint with reference to the kind of contract therein set forth. Plaintiff testified that he was employed by the heirs of the Estate of Fair for the period of ten years at a certain salary; that he had charge of the buildings and performed other services. This was equivalent to saying that he was hired to take charge of the buildings and to perform the other services which he detailed, and brought the proof sufficiently within the allegations of the complaint. Both appellants knew the sort of work Captain Seymour was to do and the salary he was to receive, and there never was any question relating to the *324 terms of his contract of employment except in regard to its period of duration.
This appeal was taken under the provisions of section 953a et seq. of the Code of Civil Procedure. The original transcript of the reporter's notes as approved by the judge was not sent here, but a printed and certified copy thereof was filed. Respondent asserts that this is not a record which we may notice. We cannot agree with this view of the law. The language of section 953c of the Code of Civil Procedure, that "said record shall be filed with the clerk of the court to which the appeal is taken and no transcript thereof need be printed" is permissive. It is not only allowable, but desirable, that a printed and duly authenticated copy of the transcript should be filed here in lieu of the original. (Waterbury v. Temescal Water Co.,
Let the judgment be amended by striking therefrom that part of it which provides for interest at the rate of seven per cent per annum from November 17, 1904, the date of the commencement of this action. In all other respects the judgment is affirmed.
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied.