Lacy Manufacturing Co. v. Los Angeles Gas & Electric Co.

Action for Value of Labor and Materials—Completion of Work After Time Limited—Acceptance—Pleading—Indebitatus Assumpsit.—A complaint in an action to recover for labor and materials furnished by plaintiff to the defendant in the erection of gas generators, which alleges that they were erected at defendant’s request under a written contract requiring them to be completed within thirty days, but they were not so completed, and the work was continued thereafter with the knowledge and under the supervision of the defendant, who accepted them, took possession of them when completed, and continued to use the same, and alleging the reasonable value of the labor and materials furnished, states a cause of action in indebitatus assumpsit.

Id.—Implied Contract.—When the generators were completed and delivered by the plaintiff to the defendant, whether in time or not, or whether in accordance with the contract or not, and the defendant accepted them, the law implied that the work and material furnished in their construction would be paid for by the defendant.

Id.—Further Cause op Action Based upon Waiver and Estoppel— Objection to Misjoinder not Urged.—The fact that the complaint also set forth other allegations relating to the acts of the defendant upon which plaintiff relied to excuse the delay, evidently intended to support a recovery on the theory that defendant had waived the time limit, and was estopped by his own acts to take advantage of the delay, cannot affect a recovery on the common count, where no objection was taken to a misjoinder of causes of action, or to the failure to state them separately, and no motion was made to strike out either as surplusage or redundant matter.

Id.—Improper Special Demurrer.—A special demurrer addressed to the complaint generally, on the ground of uncertainty, was properly overruled.

Id.—Ground of Recovery Immaterial.—Under the allegations of the complaint it is immaterial whether the evidence of the work which plaintiff did for defendant was under the contract, or in modification of it. The defendant, having accepted the work, must pay for it.

Id.—Evidence—Work Done in Completion.—Evidence showing that the work was done in the completion of the generators, which defendant accepted, was admissible.

Id.—Variance not Objected to—Waiver.—A variance not objected to is not ground for reversal; and by failure to call the trial court’s attention thereto by proper objection, it is waived.

Id.— Counterclaim for Damages — Instructions.— Instructions requested by plaintiff, dealing with the right of the defendant to recover upon its counterclaim for damages for delay in furnishing the generators, that if the changes in the plans and delay in their completion were the acts of the defendant it cannot recover, were correctly given, and an instruction requested by defendant, making an improper assumption as to the effect of certain causes of delay, as matter of law, was properly refused.