Ogden v. United Bank & Trust Co.

SEAWEED, J.

Plaintiff, H. L. Ogden, appeals from a judgment dismissing his action against the United Bank and Trust Company and E. C. Peck, vice-president of said bank, upon the granting of a motion for a nonsuit made by defendants at the close of plaintiff’s case.

On March 10, 1925, plaintiff entered into an oral contract with Mastick and Friel, a copartnership, whereby he agreed to do the plowing, leveling, harrowing, disking and other work necessary to place a ranch situate in the county of Sacramento leased by said copartnership from the defendant bank in condition for the planting of sugar beets. Plaintiff’s compensation was to be estimated on a “cost-plus” basis. He was to be reimbursed for the amount paid out by him for wages, upkeep of tools and implements, stock hire and other expenses, and to receive as profit ten per cent of the total amount of all costs and expenses.

The defendant bank was not a party to said agreement, nor did it participate in the negotiations therefor between Mastick and Friel and plaintiff. Plaintiff testified that at the time he made the contract with Mastick and Friel he asked Mr. Friel if the bank was putting up the money for the work, and Friel told him it was; that he knew from what Mr. Friel said at that time that Mastick and Friel were not able to pay for the work.

Plaintiff commenced work on March 14th. On March 26th he and William Ragsdale, foreman of the ranch for Mastick and Friel, called at defendant bank. According to plaintiff, he went to the bank to verify the statement made by Friel that the bank was putting up the money for the work and to see if his money was safe and if he would be paid. Ragsdale testified that he had told Mr. Ogden to see Mr. Peek at the bank, as Mastick and Friel were “broke.” Plaintiff exhibited a bill of more than $1300 for twelve days’ work done by him and his employees to Mr. Peck, an officer of the bank, who stated that he knew nothing, about the bill, that the bank had nothing to do with

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it and was not responsible. A second conference was held on the following day, at which plaintiff, Bagsdale, Mastick, Friel, Peck, the manager, and Kendall, another officer of the bank, discussed the matter. Plaintiff there stated, as did Bagsdale, that unless the bank would order the work done and would be paymaster, he was through and would do no further work. Peck then told plaintiff and Bagsdale to go ahead and do the work. At the close of the conference at the bank, Mastick paid plaintiff $1,000 on account. Plaintiff continued working until late in May, when the ranch was abandoned because blight bugs attacked the beets and rendered further cultivation unprofitable. No further payments had been made to plaintiff by Mastick and Friel or by the bank. After failure of the crop, plaintiff demanded payment of the bank, and was informed by Peck that the bank could not put up any money because the crops were not there. He thereupon brought this action to recover $4,626.