Maxwell v. Jimeno

VALENTINE, J.,

pro tem.

This is an appeal from a, judgment of the superior court in favor of plaintiff and against defendants. The appeal is taken on the judgment-roll alone.

The action was to recover $862.95 for work and labor performed and materials furnished. The answer admits that plaintiff performed certain work and furnished certain materials, but denies they were of the value of $862.95, or of any value, except as set forth in a certain agreement incorporated in and set up as a part of the answer and as a defense. It is alleged in the answer that it was under this agreement that plaintiff performed services and furnished materials, and that plaintiff was paid by the conveyance to him of certain real property as provided in the agreement.

The sole contention of appellants is that the pleadings do not sustain the judgment, inasmuch as the court found that the contract was obtained by false and fraudulent representations, that it was in due time repudiated, canceled, and rescinded by the plaintiff, and is void, and that because there was no pleading asking for a rescission of the contract the pleadings do not sustain the findings and judgment; that plaintiff should have set up all the facts with reference to the making of the contract, and then should have pleaded fraud and asked for a rescission.

[614]

Without reference to whether the plaintiff might have done this, he did not, and we must consider this appeal upon the theory upon which the case was tried.

(Lugiani

v.

Landau Economic Syphon Co.,

38 Cal. App. 146 [175 Pac. 648].) Plaintiff evidently relied upon his repudiation of the contract and elected to ignore it and sue upon the common count for money due him. He was justified in this by the finding of the trial court referred to above.

The appeal being on the judgment-roll alone, the evidence cannot be reviewed on appeal, and it must be assumed that the findings are sustained by the evidence. (Code Civ. Proc., sec. 670;