Beery v. De Haven

CURTIS, J.

Defendant employed plaintiff, a landscape gardener, to lay out and plant to flowers, trees, and shrubs, the grounds surrounding the home of the former in the city of Hollywood. The agreement between the parties was verbal and under its terms plaintiff was to purchase the shrubbery required and provide the labor necessary to plant the same,

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and in consideration thereof defendant was to reimburse plaintiff for the moneys so expended and to pay him in addition thereto fifteen per cent on all moneys so paid out. Plaintiff entered upon the performance of this contract and, after a certain amount of the work required thereunder had been performed, he presented to defendant a statement of the moneys due up to the date thereof. Upon presentation of this statement to defendant, the question of the total cost of the work was discussed by the parties. As a result of this discussion a new contract was entered into between them, whereby plaintiff agreed, for the sum of $2,500 ($1,500 of which was then paid), to perform all the work required for the landscaping of defendant’s grounds, consisting of planting flowers in garden, surrounding swimming pool with six-foot high foliage, planting all boxes and hanging baskets, and planting vines and greens on bare spots. This contract was in writing and bore date September 4, 1920'.

It is alleged in the complaint that plaintiff completed the contract and that the sum of $550 remained unpaid thereon. Defendant denied that the contract had been completed and further alleged payment to plaintiff in the full sum of $2,500. Plaintiff testified that defendant had paid on account of the contract the sum of $1,950' and no more. On the other hand, defendant testified that he had paid plaintiff more than said sum of $2,500. Included in this amount of $2,500, which defendant claimed he had paid to plaintiff, were a number of smaller amounts, evidenced by checks and aggregating over $550: Some of these checks were given to third persons and the others were given to the plaintiff direct. The defendant testified that they were all given at the instance and request of plaintiff and in payment of the amount due plaintiff on the contract. The plaintiff, on the other hand, denied that any of these checks were given in payment of the amount due on the contract. Each party from his own standpoint explained quite fully the nature of these payments as he understood them and the manner and purpose for which they were made. The trial court found in favor of the plaintiff and rendered judgment against the defendant for the sum of $550, and interest from the date of the completion of the contract amounting to $64.16', and from this judgment plaintiff has appealed.