Downs v. Atkinson

PRESTON, J.

The judgment is affirmed and we justify this action as follows:

The suit is upon three disallowed claims against the estate of appellant’s intestate. Plaintiff had judgment in the sum of $4,493.19, interest and costs. The attack by appeal is upon the judgment as a whole; hence it is not necessary to consider the items that make it up.

The basis of the suit is a contract dated March 29, 1921, between plaintiff and the decedent, wherein decedent agreed to pay plaintiff ten per cent of the net profits received from a contract held by him for the construction of a section of the California state highway between Mojave and the Los Angeles county line, this payment to be made to respondent upon the proviso that he give his “entire time to the work in such capacity” as decedent “shall determine and direct.” A further proviso was that plaintiff should advance to decedent $5,000 without interest, said sum to be repaid him at the time of final cash settlement in full upon the completion of said public work. It was further agreed that plaintiff should be credited with $100 per month during the life of the road contract, the amount due to be paid upon final settlement and, lastly, decedent agreed to pay respondent’s expenses and to purchase his Ford automobile for the sum of $350, likewise payable upon final settlement of the contract.

The complaint, among other things, charged “that plaintiff complied with all and singular the provisions of said contract to be kept and performed by plaintiff, giving his entire time to- the work .contemplated by said contract as determined and directed by said Lynn S. Atkinson. ...” The answer denied “that plaintiff complied with all the provisions of said contract to be kept or performed by him”; denied “that plaintiff gave his entire time to the work contemplated by said contract as determined and directed by said Lynn S. Atkinson,” but, on the contrary, defendant averred therein “that in compliance with said order (an order alleged to have been given by the state highway engineer), and by reason of plaintiff’s incompetence, inefficiency, improper conduct and inability to perform his duties

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as aforesaid, and in order that said Lynn S. Atkinson might fulfill his said contract with the California Highway Commission, the said Lynn S. Atkinson did discharge plaintiff and relieve him from all duties in connection with said work on or about October 1st, 1921. Thereafter plaintiff performed no services whatsoever in connection therewith.”