Barber Asphalt Paving Co. v. Santa Barbara Ice Co.

ALLEN, P. J.

The record presented upon this appeal is somewhat confusing. -It appears therefrom that on February 17, 1909, the plaintiff filed its complaint containing two counts, the first thereof alleging that between certain dates named plaintiff furnished one hundred and eighty-eight boxes of asphalt mixture and laid the same on the streets of Santa Barbara at defendant’s instance and request; that defendant promised to pay plaintiff therefor the sum of $2.25 per box, amounting to $423 in all. In the second count it is alleged that between the 'same dates such material was furnished and that the same, and the labor of laying the same on the streets, was reasonably worth $2.25 per box, amounting to $423 in all.

To this complaint a demurrer was interposed. It seems that on March 15th the demurrer was sustained by the court, and in the same order defendant was given ten days to answer. A minute entry, however, appears in the record to the effect that upon the samé date of the rendering of the decision upon the demurrer, plaintiff was permitted to amend its complaint by inserting the words, “to the defendant,” in an appropriate place, so that the complaint read that between the dates named the plaintiff furnished to the defendant the articles; and the same correction appears in the second count.

We think it may be said.it appears from the record that this amendment was permitted and made after the order was made sustaining the demurrer, and that thereafter the complaint as amended was before the court. No demurrer was interposed to the complaint as amended, and an answer was duly filed, which was a denial that the goods and merchandise were furnished to defendant, and denies a promise to pay therefor. Thereafter, an attempt was made to file another amendment to the complaint, the sufficiency of which as a count in debt is open to question. The cause proceeded to

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trial, however, upon the issues as presented, and the court found that plaintiff did furnish and lay on the streets at defendant’s instance and request the goods and merchandise, and defendant promised to pay for the same the sum of $2.25 a box; further, that between the dates named plaintiff furnished, at defendant’s instance and request, the articles, and that the articles furnished and the labor of laying the same were reasonably worth $2.25 a box; further, that the matters set out in the third cause of action were true.