Heslin v. Lapham

California Court of Appeal Mar 18, 1926 No. Docket No. 5030.Published

Before: Cashin

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Holding. The court held that the written document, when viewed in light of the parties' conduct and circumstances, constituted a sufficient written contract to support the judgment, and that in the absence of an evidentiary record, the trial court's finding against the statute of limitations defense must be upheld.

Issues

Whether the written document constituted a contract in writing sufficient to avoid the statute of limitations under Code of Civil Procedure section 339.
Whether the trial court's finding against the statute of limitations plea could be challenged on a judgment-roll appeal without the evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The language of the writing in the present case fairly supports the conclusion that an offer was thereby intended to be expressed, which offer, as impliedly found, was accepted by respondent and was acted on by both parties.”

“As held in Archer v. Harvey, 164 Cal. 274, 276 [128 Pac. 210], where the evidence is not brought up on appeal its sufficiency to support a finding against the bar of the statute cannot be questioned.”

CASHIN, J.

An action for damages upon a contract for the construction of additions to a building.

Judgment was entered for plaintiff, from which defendant has appealed upon the judgment-roll, his grounds for reversal being that the action was not one upon a contract, obligation, or liability founded upon an instrument in writing, as found by the trial court, and was therefore barred under subdivision 1 of section 339 of the Code of Civil Procedure.

It was found, in accordance with the allegations of the complaint, that a contract in writing was entered into between the parties, by which appellant agreed to construct certain additions to a garage owned by respondent; that the latter paid a portion of the consideration for performance; that appellant partially performed, but failed of full performance, to the damage of respondent in the sum of $300. It was further found that the writing hereinafter considered was executed by appellant alone and was the

[139]

only writing between the parties. The evidence taken at, the trial was not brought up on appeal.

It is contended by appellant that the language of the writing is not sufficient to express the terms of a contract or create an obligation or liability within the provisions of subdivision 1 of section 337 of the Code of Civil Procedure. The material portions of the writing are brief. Following the initial paragraph, which read “General Conditions and Specifications for construction of sun porch for garage,” was set forth a detailed description of the work to be done and the materials to be used, concluding with the following: “Price complete $685.” “Double French doors in rear of house, $78,” the writing being subscribed by appellant. The trial court construed this writing to express a promise to perform the work described in consideration of that of respondent to pay upon completion of the work the sum therefor stated therein. The intention not being clear from the language of the writing, for its proper construction the circumstances under which it was written might properly have been considered by that court (Civ. Code, sec. 1647; Code Civ. Proc., sec. 1860). As said in

Euless

Heslin v. Lapham

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CASHIN, J.

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