Ginther v. Tilton

[285]

PEEK, P. J.

Plaintiff appeals from an adverse judgment entered following an order granting defendant’s motion for nonsuit.

The facts, which appear by way of a settled statement, are as follows:

In August 1955, plaintiff and defendant, both carpenters, entered into an oral agreement by which plaintiff agreed to work on the construction of defendant’s home in exchange for comparable work from defendant when plaintiff began construction of his home. Plaintiff, having just purchased the property, advised defendant that he would not be able to start building his home until he had completed payments on the property. No time was specified when plaintiff was to commence construction on his home. Work on defendant’s home was completed in March 1956. Plaintiff contributed approximately one-third of the labor, or an estimated 300 hours of labor at $3.00 an hour.

In March 1959, plaintiff completed payments on his lot and started building his home. Defendant, after requests by plaintiff, worked for 24 hours on plaintiff’s home and then refused to continue. He also refused plaintiff’s request to permit plaintiff to hire someone at defendant’s expense. Plaintiff hired another person and estimates that he was damaged in the approximate amount of $818 as a result of defendant’s breach.

On August 25, 1960, plaintiff filed his complaint for damages. A demurrer to the complaint was overruled and the case proceeded to trial without a court reporter. Defendant’s motion for nonsuit was granted on the theory that since time of performance was not specified, a reasonable time for performance was implied, that two years was a reasonable time; that more than two years had elapsed before plaintiff made his demand; and that the two-year statute of limitations applied.

Since it is our conclusion that on the merits the order of the trial court must be sustained, it becomes unnecessary to discuss the various procedural arguments made by defendant in support of the judgment.

Plaintiff concedes that the statute of limitations applies. His sole contention, however, is that it runs from the time of the breach and the breach did not occur until March of 1959 when plaintiff commenced construction of his home and made demand upon defendant.