DeRosier v. Vierra

SCHOTTKY, J. pro tem.

Plaintiff and respondent commenced an action against defendant and appellant, the complaint containing two counts: (1) for $1,688.80 as the reasonable value of work, labor and services in the nature of land planing, scraping, ripping and surveying, at the special instance and request of defendant; and (2) upon an open book account for the same amount.

Defendant filed an answer denying the material allegations of the complaint, and also filed a cross-complaint in which he alleged that plaintiff agreed to level a 52-acre tract of land for defendant in such a good workmanlike manner that the entire tract could be irrigated by water poured thereon at a point designated by defendant previous to beginning the work; that plaintiff so negligently performed the work that defendant was unable to- irrigate the land from said predesignated point; that after the work was done, defendant planted a bean crop but because of being unable to irrigate defendant was deprived of a bean crop which would have yielded 891 sacks more than were actually yielded, the sacks being worth $4.00 each, and the total profit would have been $3,564; that thereafter defendant planted the tract to barley,. and while the barley was growing and immature, plaintiff offered to come in and level the land on condition that plaintiff be allowed to do so without delay and that defendant should, and he did, plow under the growing barley; that the plaintiff entered and so negligently performed the leveling that the defendant was unable to irrigate from the predesignated point; that as a result defendant lost 900 sacks of barley at $1.25 a sack and a total of $1,125; that as a result of the excessive plowing, working and leveling of the land caused by plaintiff’s negligence, defendant suffered damage to his land in the sum of $100 an acre and total of $5,200; that by reason of defendant’s being unable to irrigate he was unable to raise crops in 1948 and 1949 at a profit of $3,500 for each of those two years, and therefore he was damaged in the sum of $7,000. Defendant prayed judgment for $16,889 upon his cross-complaint.

Plaintiff denied all of the material allegations of the cross-complaint, and, following a trial before the court without a jury, the court found that the allegations of the complaint

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were true and those of the cross-complaint were, untrue. Judgment was entered for plaintiff in the sum of $1,688.80, interest and costs, as prayed for in the complaint. Defendant’s motion for a new trial was denied, and defendant has appealed from the judgment.