N. Am. Dredging Co. of Nevada v. Outer Harbor Dock & Wharf Co.

Appeal—Time for Appeal from Judgment Prior to 1915.—Prior to the amendments to the Code of Civil Procedure in 1915, an appeal from a judgment of the superior court, taken within six months from the actual entry of the judgment, was in time.

Id.—Premature Notice op Entry of Judgment.—Where on December 7, 1914, notice of entry of judgment was served, giving the date of entry as December 3d, but in fact judgment was not entered until December 18th, the notice was premature and ineffectual for any purpose.

Contract—Action on Quantum Meruit for Work Done—Pleading.— In an action by a dredging company on a quantum, meruit for certain dredging work, alleged by the plaintiff to have been done by it for the defendant, a dock company, under a written contract set out in the complaint, whereby the dredging company was to dredge and deposit a certain quantity of material monthly on the dock company’s property until the land was filed to a certain grade, payments for work done to be made monthly, it is held that while the complaint was very indefinite and uncertain as to whether the work of filling upon the defendant’s property had been completed according to the contract so as to have entitled the plaintiff to be paid at the full contract rate for its work during the month for which suit was brought, the pleading was not so fatally defective as to be subject to a general demurrer.

Id.—Rescission—Party in Default.—A party to a contract who is himself in default in respect to a material part thereof may not rescind.

Id.—Provision for Arbitration.—Where a dredging contract contained a provision that “in case of any disagreement between the parties respecting any matter under this contract, settlement of which is not hereinbefore provided for, the same shall be settled and the rights of the respective parties determined by arbitration, each party hereto to select one arbitrator, and the two so chosen to select a third, and the three arbitrators shall hear all evidence offered, and make investigation of the facts, and the decision of the majority of such arbitrators shall be final and binding on both parties,” such provision was not binding upon the parties so as to have required the one who claimed a breach to have first sought' recourse to arbitration, before either bringing an action upon the contract or working its rescission and commencing action upon a quantum meruit, if otherwise entitled to it.

Id.—Acceptance of Payment—Waiver of Right to Rescind.—Where a dredging company accepted from a dock company the whole amount claimed by the latter to be due from it for a certain month, on a dredging contract providing for monthly payments for the work done in each month, the dredging company could not, with full knowledge that the sum offered was tendered in full performance of the dock company’s obligation, receive it as part payment for the work without thereby waiving its right to rescind the contract upon the ground of the dock company’s failure to perform.