Stone v. San Francisco Brick Co.

HALL, J.

Plaintiff sued to recover the sum of $854 as the reasonable value of work and labor performed for and materials furnished to defendant by plaintiff’s assignor, at the special instance and request of defendant.

Plaintiff recovered judgment for the. sum of $500, from which and the order denying its motion for a new trial defendant appealed to this court.

The action was commenced by the filing of the complaint on the eighteenth day of May, 1907, which alleged the performance of the work, etc., within two years last past. The findings were signed and filed on the twenty-first day of May, 1908. The court, following the language of the complaint,

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found “That within two years last past, at the City and County of San Francisco, said Union Machine Company performed work, labor and services for said defendant corporation at its special instance and request, in making and repairing various kinds of machinery and metal appliances, and during said time said Union Machine Company furnished materials to defendant in and for said work on the like request.”

This finding is attacked by appellant as not supported by the evidence and as evasive and not responsive to the issues presented by the pleadings. The point of the attack is that the words “two years last past” refer to the two years immediately preceding the date of the filing of the findings and not to the period preceding the filing of the complaint, while the evidence in the case shows without conflict and with certainty that all the work was done and all material furnished before the great earthquake and conflagration which occurred in April, 1906, more than two years before the filing of the findings.

Undoubtedly the words “within two years last past” as they occur in the findings were inadvertently used.

Findings must be read as a whole. In this case the court also found that “prior to the commencement of this action” the claim was assigned by said Union Machine Company to plaintiff, and in response to a plea of the statute of limitations, subdivision 1, of section 339, Code of Civil Procedure, found that the cause of action was not barfed by the provisions of said section or by any other section of said code. The court also found as to the value and as to nonpayment of the debt.