Pearson v. Parsons

[337]

SHAW, J.

This cause was heretofore before this court on an appeal by the defendant from a former judgment.

(Pearson

v.

McKinney,

160 Cal. 649, [117 Pac. 919].) Upon that appeal the judgment in favor of the plaintiff was reversed and the cause remanded for a new trial. Afterward, S. J. Parsons was substituted as administrator of the deceased, Hendrick, and the complaint was amended. Thereupon another trial was had resulting in a judgment for the plaintiff in the sum of nine hundred dollars. From this judgment the plaintiff appeals.

The first point urged by the appellant is that the court below erred in sustaining' a demurrer to the complaint on the ground that the complaint included several causes of action which were not separately stated. The plaintiff then amended the complaint by stating in separate counts the respective demands claimed to constitute separate causes of action. Having thus removed the objection, and having thus gone to trial upon the complaint as amended, the plaintiff must be deemed to have waived the objection that the demurrer was improperly sustained.

(Gale

v.

Tuolumne Water Co.,

14 Cal. 28;

Ganceart

v.

Henry,

98 Cal. 283, [33 Pac. 92].)

The only other point urged in support of the appeal is that the court erred in refusing to allow the plaintiff to introduce evidence in support of damages claimed to have been suffered by reason of the fraud and negligence of the decedent, Hendrick, in carrying out his part of the contract of sale upon which the action was based. In order to make this point clear it is necessary to state the facts.

The original complaint attempted to state a cause of action against the decedent, Hendrick, who was then living, to recover damages alleged to have been sustained by reason of the refusal of Hendrick to deliver to the plaintiff twenty-five thousand budded orange trees sold by him to the plaintiff. The contract of sale was made November 12, 1906, and was in writing. As construed upon the former appeal, it provided that Hendrick was to set out one hundred and fifty thousand seed-bed orange plants sold to him by Pearson, to be delivered to Hendrick before May 15, 1907, cultivate them, bud them when of proper size to varieties of oranges selected by Pearson, and sell twenty-five thousand of them to Pearson during the years 1909, 1910, and 1911, at stated prices. Pearson was to have the option of taking them when