Watson v. Anderson

BEASLY, J.,

pro

term.

This is an action in which the plaintiffs recovered a judgment against the defendant for the failure of the latter to erect a building in a workmanlike manner in accordance with his contract so to do. Defendant appeals.

The first point made by the appellant is that his demurrer should have been sustained, but as the order made on demurrer does not appear in the transcript, the demurrer must be held to have been waived. (Code Civ. Proc., sec. 670,

Silcox

v.

Lang,

78 Cal. 118, [20 Pac. 297].)

A number of findings made by the trial court are attacked on this appeal as unsupported by the evidence. It would serve no good purpose to particularize each of these findings here, and to specify and recite the evidence supporting them. It is sufficient to say that all of the material findings find support in the evidence.

Certain rulings of the court made during the course of the trial to which appellant excepted will be considered. The first related to the admission by the court of certain specifications for the building which were not signed, and which it is therefore claimed could not form part of the contract in the case. These specifications were present when the contract was signed and corrected in some particulars on the night the contract was, signed and before the signing of that instrument. They were not attached to the contract nor were they actually and separately signed by the parties. The work, however, or most of it, was done in accordance with these specifications, and the defendant himself testified that while no written specifications were ever signed there were specifications covering the job, namely, these specifications to the admission of which exception was taken; and that he followed these specifications in doing the work as closely as he could; that he was supposed to follow these specifications in the mixing of the plaster, which was a vital matter, as will hereafter be seen. Some of this evidence was introduced as a part of defendant’s case and after the specifications had been admitted in evidence. If there was error originally in

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