64 Cal. 47 | Cal. | 1883
—Because of the contradictory and uncertain nature of the findings of the court below we must reverse the judgment and remand the cause for a new trial. The suit is to recover a balance of $1,350, alleged to be due the plaintiff on a contract alleged to have been made in writing between plaintiff and defendant, on or about April 24, 1874, by the terms of which plaintiff agreed to carry the United States mail as sub-contractor under Allman, between two certain designated points for a period of four years, for the sum of $5,400, which the complaint alleges defendant Allman agreed to pay plaintiff within thirty days from the time he (defendant) received his compensation from the government. The complaint also alleges performance of the service by the plaintiff, the receipt by the defendant of his compensation from the government, payment by him to the plaintiff of $4,050, and a balance due of $1,350, which defendant fails and refuses to pay.
The findings are to the effect that at the time stated in the complaint plaintiff and defendant made a contract, a memorandum of which was reduced to writing, but not signed by either party. That its terms were as charged in the complaint, except that for the service agreed to be rendered by the plaintiff, the defendant agreed to pay him $2,200 per year; that “ in said memorandum it was further agreed that the contract aforesaid should be reduced to writing at length, and signed by plaintiff and two bondsmen and also by defendant; that in pursuance of said agreement the contract in full was reduced to writing by
It may be remarked here that as the court found that the contract price AAras $2,200 per year for four years, that is to say that it Avas $8,800, and also found that all of the contract price AAras paid except $1,350, it in effect found that plaintiff Avas paid $7,450, Avhich is considerably in excess of the Avhole contract price according to the averments of the complaint. Yet the findings also declare that $1,350 remained due and unpaid to plaintiff for the service, and that the defendant subsequently so acknoAvledged and promised to pay the amount. But another difficulty in the Avay of affirming the judgment arises from the fact that the court beloAv also found : “ That it was understood by both parties that the contract, last draAvn up betAvcen the parties and signed by all of them except Allman, should supersede the memorandum of contract made by them prior to that time.”
We hardly lmoAV AA’hat is meant by this finding. “ The contract last draAvn up between the parties, and signed by all of them except Allman,” Avould seem from the findings to have been an altogether one-sided arrangement; for Hinds seems to have been injected as principal on the one part, without the lmoAAdedge or authority of either himself or of the plaintiff; and it aa'us the contract thus made in Hinds’ name with the plaintiff that the court beloAv found Avas, according to agreement between
Judgment and order reversed, and cause remanded for a new trial, with leave to the plaintiff to amend his complaint if he shall so elect.
Sharpstein, J., Myrick, J., McKinstry, J., and Thornton, J., concurred.