Tryon v. Clinch

JAMES, J.

J.—from a judgment entered in favor of the plaintiffs after second trial of the cause. The first judgment was brought here by appeal of the same defendant, the case being reported in 32 California Appellate Reports, at page 150, under the same title.

The action was brought by the plaintiffs to recover for the value of work done and materials furnished in the laying out 'and improvement of a certain street or roadway. The facts are that appellant and his codefendants Clinch and See were severally the owners of certain portions of a tract of land; about two-thirds of it belonged to appellant, and the other defendants held an equitable title to the remainder. Under this condition of ownership, appellant conferred with Clinch and See and together they determined that it would be advisable to construct a street through the tract. Clinch or See agreed to look up a contractor, and did this. However, before any contract was made, the appellant was called east. Before going, he consulted further ■with. Clinch and See and left the matter of arranging for the street improvement work with them. About this time, or shortly thereafter, the plaintiffs addressed a written proposal to Clinch and See in which terms were expressed for the doing of the work, and Clinch and See indorsed the same under the word “Accepted.” We gather that they retained this letter in their possession, but gave notice to plaintiffs of their acceptance of the proposal and the plaintiffs proceeded to do the work agreed upon. A completed job, as the contract described the work, was not done for the rea

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son that the plaintiffs were interrupted through the acts of the defendants. These acts culminated in the street being offered and received for dedication by the city of Los Angeles prior to the completion of the work. Under the city specifications the work, as contracted for, could not be completed in the manner specified by the parties in their agreement. Not being .permitted by the city, because of the acts of the defendants, to proceed with the work, plaintiffs sought to recover the value of that already done and performed ; hence this suit. All of the work for which compensation was claimed had been done and materials furnished prior to the time that appellant returned from his eastern trip. Upon his return report was made to him by Clinch and See of the agreement entered into and he, at their suggestion, signed his name upon the written proposal theretofore made by plaintiffs and under the signatures of his codefendants after the word “Accepted.” At the first trial the court entered judgment for the full amount against the three defendants. Upon the appeal this court determined that under the facts shown Clinch and See, assuming that they acted as agents of Markham, had only authority to bind him to such a proportion of the whole contract price as his proportion of the tract bore to the whole amount thereof. A reversal was accordingly ordered. Upon the -second trial the court apportioned the recovery in accordance with the views expressed in the -opinion in the former case. Appellant is once more here urging that the judgment be reversed.