Kataoka v. Hanselman

McFARLAND, J.

The justices of the district court of appeal of the second appellate district, to which this cause had been appealed, not being able to unanimously agree in a judgment, filed their opinions, and the cause was transferred to this court. In the district court a majority of the justices concurred in the following opinion: —

"The suit was brought on a contract between the defendant and plaintiff set out in the complaintby the terms of which the plaintiff agreed, in effect, to cultivate certain lands of the defendant planted to beets and load the beets into wagon as instructed by the latter or his agents, at the agreed price of one dollar per ton for the beets taken from land yielding seventeen tons or more per acre, and $1.25 per ton for beets taken from land yielding or producing less than seventeen tons, etc.

"The following clauses bearing upon the questions involved in the case are contained in the agreement:—

“ ‘The party of the first part agrees that all land planted and handled by them and described as follows:—

No. 1........................85 acres

No. 2........................ 1.10 acres

No. 3........................15 acres

............................. acres

containing in all 2.10 acres, more or less, is to be cared for by the party of the second part, T. Kataoka.’

“ ‘Payments are to be made three times in order of the described and as follows, if required by party of the second part, at the rate of four dollars ($4.00) per acre after thinning is* done, and after the field is laid by, that is, when the beets have been hoed not less than two times, and are free from weeds, an additional two dollars ($2.00) per acre will be made, the balance remaining due to be paid after all work is finished in accordance with this agreement. ’

“It may be assumed that the decimal points in the former of the two paragraphs quoted were inadvertently inserted, and that the number of acres intended to be described was 210.

[675]

“It is further alleged that the plaintiff has duly performed all the conditions of the contract, and that upon its completion there was due to him the sum of $3,431.87; of which amount there has been paid to him the sum of $2,904.25, leaving due the sum of $527.12. The defendant in his answer denies that upon the completion of the contract there was due to the plaintiff any sum greater than $2,934.25; of which amount it' is alleged he had paid the sum of $2,904.25, leaving due to the plaintiff the sum of thirty dollars only, which, he alleges, he tendered to the plaintiff. This allegation and denial constitutes the only issue in the case; and on this issue the court finds for the defendant. Judgment was entered accordingly, from which and an order denying his motion for a new trial plaintiff appeals.