Nishkian v. Chisholm

McLAUGHLIN, J.

This is an action to recover money due on contract. The cause was tried before a jury, and upon a general verdict for the plaintiff for $840, judgment for such sum was entered against the defendants. From such judgment and an order denying their motion for a new trial, defendants appeal.

It appears from the complaint that the plaintiff and defendant Chisholm entered into a contract by the terms of which plaintiff was to plow and harrow forty acres of land in a manner particularly specified, and plant the same to “good, sound, healthy, rooted Zinfandel vines, in an efficient and workmanlike manner, and in rows eight feet apart, straight and parallel with each other in all directions; and the vines equidistant eight feet.” Under the terms of the original contract, the planting was to be commenced on March 1, 1902, and completed within five days. Plaintiff, however, alleges that the contract was subsequently modified by mutual consent so as to permit and authorize him to commence planting on March 18,-1902, or thereabouts. The contract price was $10 per thousand for vines planted, $8 per

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acre for plowing and harrowing, $150 as a general payment, and $16 for each additional time the tract was harrowed and cultivated. It also contained a provision for the payment of a balance of $125 for a surrender of a lease by plaintiff and his brother. It is alleged that the plaintiff plowed and harrowed the land and planted twenty-four thousand five hundred vines thereon, completing the same on April 3, 1902, and that defendants Bronge, as assignees of Chisholm, assumed all rights, liabilities, and obligations arising under the contract. As a second cause of action plaintiff set up an account stated, showing a balance of $605 due on account of the transactions between plaintiff and Chisholm, and a third cause of action was based on performance of the contract, nonpayment of the contract price, and the expenditure of $40 at the special instance and request of Chisholm in carrying out the agreement between them. The prayer of the complaint was for the sum of $605, but by way of supplemental complaint plaintiff set up additional liabilities accruing under the contract after the complaint was filed, increasing the total demand to $880. In their answer to the original and supplemental complaints, defendants admit the execution of the contract, but deny that it was ever modified or performed. There is an express admission that defendant Catherine Bronge became the assignee of the contract and assumed all liabilities arising thereunder, and there is no denial as to defendant Albert Bronge in this regard. The parties to the action entered into a stipulation reciting that any and all injuries, claims, wrongs or matters accruing from or arising out of the agreement or contract in the complaint first mentioned might be litigated in this action; that the plaintiff and defendants were proper parties to such litigation, and that no objection would be made by reason of or upon the ground of a misjoinder of parties. The specifications of insufficiency of the evidence to support the verdict all relate to the performance of the contract, and the mistake in and modification of the same, and to the issue touching an account stated. There is also a specification that the evidence is insufficient to show that the sum of $125, or any sum, was due or owing from defendants to plaintiff.