Draper v. Patterson

WARNE, J. pro tem.

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This is an appeal from a judgment in favor of plaintiff for the sum of $2,386.77 which represents the balance owing for work performed in clearing and leveling land on property leased by the defendant. The defendant has appealed from the judgment.

Defendant is the lessee of a 700-aere ranch in Tehama County which is operated as a dairy farm. Plaintiff owns and operates equipment used in the clearing and leveling of land, and he approached defendant for the purpose of inducing him to permit plaintiff to clear and level additional land on the ranch. After some negotiation, a contract was entered into in February, 1953, whereby plaintiff agreed to do certain clearing on three parcels with leveling on one of said parcels of said land. Two-thirds of the cost was to be borne by the lessors and one-third by defendant. Duplicate memoranda were signed by the parties which read as follows:

“This is to certify that leveling and clearing land on the J. J. Silva Ranch operated by Eugene Patterson is being done in accordance with provisions of a lease between Patterson & Silva, which provides that % of such clearing and leveling will be paid by operator Eugene Patterson and % by owner

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J. J. Silva. Also that the land being cleared in Feb 1953—

Vs

will be paid by Eugene Patterson from the profit of crops off the land now being cleared.

“This is to certify that I understand and agree to the above method of payment. ’ ’

The work was done by plaintiff and the lessor’s share was paid. Defendant paid only a small portion of the amount due from him, leaving a balance due amounting to $2,386.77. A little over two years after the work had been done plaintiff brought suit for the balance due. The first amended complaint alleges four alternative causes of action, the first being a common count on an account stated, the second, a common count for the reasonable value of work, labor and services performed; the third count, a cause of action to recover under the contract; and the fourth based on the reasonable value of the entire job. The amount demanded in each count is identical and it is manifestly evident that counts 1, 2 and 4 are all founded and based upon the set of facts set forth in count 3; that is, the contract obligation. Defendant filed a general demurrer to the complaint which was overruled. As a special defense defendant alleged in his answer “that in the month of February, 1953, by an agreement in writing executed by plaintiff and the defendant, the plaintiff agreed that any payment or obligation owing to the plaintiff by the defendant by reason of any work on the land described in the complaint would be paid only from the profits of crops off the land now being cleared, ’ ’ and that he had not made any profits from any crop or crops off the lands referred to.