Sargent v. Seymour Finance Corp.

BARNARD, P. J.

The defendant corporation employed the plaintiff to do some engineering work upon certain real property in Mono County, California, in connection with

[725]

preparing said property for subdivision and sale as cabin sites. This action was brought by the plaintiff to recover compensation for said services, and this appeal is from a judgment rendered in his favor.

Appellant first urges that there is a fatal variance between the pleadings and the proof, in that the complaint alleges a definite agreement to pay a certain sum for the work, whereas it is contended that the evidence fails to show any agreement as to the price of the work, but does show the reasonable value thereof. The pertinent part of the complaint reads as follows:

“ . . . defendant became . . . indebted to plaintiff . . . $6,457.10 for work and labor performed by plaintiff for defendant at its request, and in consideration thereof defendant agreed and promised to pay plaintiff when requested the said sum of $6,457.10 . . . $4,307.10 unpaid ...”

The answer of the defendant contains the following:

“Defendant is the owner of land in Mono County comprising more or less of 340 acres. At request of defendant, plaintiff . . . delivered a letter to defendant ... ' . . . I am estimating the engineering services at $12.50 per acre . . . based upon the assumption that the entire property will be included . . . ’ Upon receipt of said letter and in reliance thereon defendant did employ plaintiff to perform the services set forth. Plaintiff undertook to check the boundaries of tract 1, at defendant’s request. So far as defendant knows plaintiff did correct said boundary. It was agreed that plaintiff should receive $12.50 an acre on tract 1.”

A map which was introduced in evidence shows 300 acres marked “Seymour Finance Corp.” lying in sections 17, 21 and 22 in township 2 south, range 26 east, and also shows another tract of 80 acres, being the portion referred to in the answer as “Tract 1”, marked in the same manner, and situated about two miles away from the main body of the land. The president of the defendant corporation testified as follows: