Cole v. Bux

PREWETT, P. J.,

pro tem.

The plaintiff, in the first count of his complaint, claims the sum of $330 as due to himself for labor performed for the defendant. A second conut for $385 is based upon a like claim of one Melvin J.

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Cole, assigned to the plaintiff. The appellant makes two points. The first involves a mere conflict in the evidence. The second is based upon certain rulings of the court -concerning parts of a deposition of the deputy state labor commissioner.

1. As to the first point, it is sufficient to state that the evidence is very sharply conflicting, the plaintiff having testified to one state of facts and the defendant to another and in direct conflict with the plaintiff. The plaintiff and his assignor were working for one Walker at an agreed price for themselves and teams of eleven dollars per day. Walker was a contractor under the defendant and the labor was being performed upon property in the ownership or charge of the defendant. The plaintiff testified as follows: “After we worked a few days we quit Mr. Walker and told him we wanted our money and he said, ‘If you are going to quit, go to M. Bux,’ that ‘we will go to see him and see if he can get your money,’ and after we went to Mr. Bux he said, ‘You stay and work and I will pay you, ’ and then he said that he would pay us for what we done and what we were to do if we would stay and work, but that we were through with Mr. Walker and wouldn’t take any more- chances with him”; and, “He said, ‘You boys are the only ones that are doing any work and you stay and work and I will pay you.’ ” The testimony of the plaintiff was corroborated by other witnesses. The question was solely a question of fact upon which the conclusions of the trial court are binding on appeal. No citation of authorities is needed to show that the new relation constituted a new and independent contract, involving no element of the statute of frauds. It was not a promise, as contended by the appellant, to answer for the debt of another. The court, out of an abundance of caution, rejected the claim for the first five days of labor performed for Walker, although under the third subdivision of section 2794 of the Civil Code it might well have allowed this. The very recent case of

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