Scouten v. Harding

FINLAYSON, P. J.

This is an appeal from a judgment of nonsuit in an action brought by plaintiff to recover the contract price of certain labor performed and material furnished by him in fumigating an orange orchard

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owned by the defendant Hannah F. Harding, wife of the defendant D. W. Harding. Throughout this opinion the wife will be referred to as the defendant.

It is alleged in the complaint that plaintiff and defendant entered into a contract whereby the former agreed to fumigate defendant’s orange orchard in Orange County for the agreed price of 16 cents per tree and 75 cents per pound of liquid gas used in the process; that plaintiff fumigated 1,181 trees and used 294% pounds of liquid gas; that the agreed price for the labor thus performed (1,181 trees at 16 cents per tree) is $188.96, and that the agreed price for the material used (294% pounds of liquid gas at 75 cents per pound) is $220.50, making a total of $409.-46, no part of which has been paid. The answer, while admitting that defendant employed plaintiff to fumigate her orchard, denies that the contract was as alleged in the complaint or that plaintiff performed labor or furnished material as alleged by him, and alleges, as an affirmative defense, that the work was so negligently performed that defendant suffered damage to her orchard in a stated sum.

Much of the testimony of plaintiff’s witnesses was stricken out by the court, but that which remained in the record shows that plaintiff, as a part of his case, proved by the manager of his business in Orange County, one George E. White, that in the month of July, 1920, he entered into an agreement with defendant whereby it was agreed that plaintiff should fumigate the orchard upon the terms and conditions alleged in the complaint. Plaintiff also proved by his foreman, one Eli Haskell, who had charge of the crew which did the work, that he and the men under him fumigated all of the trees in defendant’s orchard. Haskell identified a certain chart, referred to by him as the “dope sheet,” most of the entries upon which he testified were in his handwriting. These entries, however, are not self-explanatory. That is to say, only an expert familiar with the meaning of the notations on the chart could decipher them so as to tell how many trees were actually fumigated or how much liquid gas was. actually used. Such explanatory evidence was introduced by plaintiff but later was stricken out on motion of defendant. At the conclusion of plaintiff’s evidence defendant moved for a nonsuit upon the ground, among others, that there was no evidence