Melvin v. Berendsen

THE COURT.

The above action was brought by Horace W. Amphlett, since deceased, as assignee of the Wisnon Company, a corporation, to recover from the defendants the sum of $3,000 upon a contract executed by them. At the time of its execution Amphlett was a tenant of a certain building owned by the Wisnon Company, and defendant Berendsen was interested in a street-widening project along the street adjoining the building. It was understood that the work contemplated would require the taking of a portion of the structure, and that as a result the total space therein theretofore occupied by Amphlett and two other tenants would be diminished. The agreement—in which the Wisnon Company was named as first party and defendant Berendsen as second party—provided as follows: “ . . . The said second party agrees to pay to the first party the sum of three thousand ($3,000.00) dollars lawful money of the United States upon the completion of said North B street extension work as and for a portion of the moving expenses of Horace W. Amphlett, Esq., or his assigns, of the San Mateo Times and Daily News Leader, in the event said Horace W. Amphlett, Esq., or his assigns, is moved to another location by reason of the doing of said public improvement work.” Defendant New York Indemnity Company for a valuable consideration promised that defendant Berendsen would perform his agreement, and became bound on that account to the Wisnon Company in a sum in excess of the above amount.

It was alleged, and the court found, that Amphlett was removed from the building “by reason of the doing of said improvement work”; that he incurred on that account expenses exceeding the sum of $3,000, no part of which had been

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paid by defendants or either of them to him or his assignor. Judgment was entered accordingly and defendants have appealed.

They denied that the removal was due to the improvement work, and contend that the finding thereon is unsupported; also that the trial court erroneously restricted the cross-examination of the plaintiff on that issue.

The evidence shows that the portion of the building occupied by Amphlett was not directly damaged or physically disturbed by the improvement, but that the space therein occupied by adjoining tenants was disturbed; that it became necessary to rearrange the interior of the building, including the space occupied by the plaintiff, in order to provide accommodations for the other tenants, and that this necessarily disturbed plaintiff’s occupancy. Whether this was contemplated at the time the contract was made, and the provision in question was intended to meet the situation, was disputed. The record contains testimony from which an inference either way might be drawn. The circumstances known to all parties at the time of the execution of a contract may be taken into consideration in determining the meaning intended