Charles R. McCormick Lumber Co. v. O'Brien

WOOD (W. J.), J., pro tem.

Plaintiff alleges in the complaint that it sold and delivered certain building materials to defendants O’Brien and Ersery at their instance and request and seeks to recover the sum of $530.32, the balance due on the purchase price. O’Brien was the owner of a house on which certain alterations were being made and

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Essery was engaged to make the alterations under an agreement by which his compensation was to be calculated on the basis of ten per cent of the cost of labor and materials used in the work. The defendants answered separately, O’Brien claiming that Essery was an independent contractor and therefore solely liable, and Essery claiming that he was merely the agent of O ’Brien. The trial court found in favor of the contentions of Essery and rendered judgment against O’Brien, who prosecutes this appeal.

Determination of the appeal depends upon the question whether the findings are supported by the evidence. Since the findings are in favor of plaintiff, the evidence must be considered in the light most favorable to its contentions.

(Hoppin

v.

Munsey,

185 Cal. 678 [198 Pac. 398].) Nearly all of the evidence on the subject is found in the testimony of Essery and certain exhibits received by the court. Concerning the making of the contract, Essery testified: “I told him (O'Brien) the only way I would care to handle a job of that kind in the country, and an alteration job, would be on a percentage basis, which would be—I would act as his agent as superintendent, on the basis of 10% plus cost of the job, and settlement would have to be made every week, at any time he was dissatisfied with me, he could fire me. . . . Q. Then what did Mr. O’Brien say? A. All right. ... Q. As to the general method of the doing of this construction work by you for Mr. O’Brien, the employment of all labor and the purchase of all necessary material was left with you to attend to, was it not? A. Practically—with his suggestions, of course. He made suggestions and I advised him. Always advised with him. Q. That is, he directed generally as to what he wanted done and what should be done; but as to the duties of procuring the necessary material and the duties of the necessary labor to carry it out, that was left with you? A. Yes, sir. ... I drew a sketch of the plan that he wanted, and he kept changing it from time to time, adding to it and enlarging it. ... I told him that I would handle the work, that the only way I could handle a job like that would be on what we call percentage plan, he to pay all bills and make a settlement each, week and give me ten per cent of the cost for that week, each weekly statement, that I would handle the job on that basis. And he said that he did not want to bother writing out all these checks, and asked me if I