Blair v. Brownstone Oil & Refining Co.

WORKS, J.,

pro

tem

This case has been heard three times in the trial court, by a different judge on each occasion. On each of the two earlier trials judgment went for the defendant, but the judgments were reversed on appeal in each instance.

(Blair

v.

Brownstone Oil & Refining Co.,

17 Cal. App. 471, [120 Pac. 41]; Id., 168 Cal. 632, [143 Pac. 1022].) On the trial which last took place judgment was recovered by the plaintiff. The defendant appeals from the judgment and from an order denying its motion for a new trial.

[395]

The parties entered into a contract by which Blair agreed to deepen a well for the Brownstone Company at an agreed price for each foot of increase of depth. By the contract the company bound itself to supply to Blair all tools, machinery, and appliances to be used in the performance of his work. Blair had proceeded to a certain stage of the work when its further prosecution was stopped by the refusal of the company to furnish a certain cable needed in his operations and which it was the company’s duty to supply under the clause of the contract binding it'to provide tools and appliances. Blair brought this action, in two counts, to recover from the company for his operations under the contract. The first count is for damages, the second for the reasonable value of the work done. The trial court determined that the same sum was due upon each of these alternative counts and rendered judgment for the amount.

Under the count for damages evidence was received of the amount of Blair’s expenditures under his partial performance of the agreement, as well as evidence showing the value of his own services. The amount for which judgment was rendered is the total of these figures. No evidence was offered tending to show what profit Blair lost by reason of his cessation of work under the contract. The company contends that the only proper measure of damages in the case is the loss of profit, and that, as there was no evidence upon that point, the finding of .the court that Blair was damaged in the amount for which judgment was allowed is not supported by the evidence.