Palm v. Planada Development Corp.

HENSHAW, J.

Plaintiff's complaint charged upon three causes of action. The following statement of them is sufficient for the consideration here to be had. Plaintiff had entered into a written agreement with defendant’s predecessor, under which he was to dig for it a well a thousand feet deep, if necessary, to secure a flow of water satisfactory to defendant’s predecessor. Thereafter defendant and plaintiff entered into an agreement substituted for the earlier one, whereby it was contemplated that plaintiff, instead of digging one well of a thousand feet depth, “will undertake the drilling of shallow wells . . . until the amount of three thousand five hundred dollars that would have become due and payable for aforesaid one thousand foot well shall have been made up.” In his first cause of action plaintiff alleged that he had in the matter of digging these wells done work for which he had not been wholly paid. Upon the trial of this cause the court found that there was due to plaintiff for work thus actually performed the sum of $216.62, and this determination is accepted without question by appellant.

The second cause of action was in effect a common count for $78.99 for work and labor performed by plaintiff in repairing

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a pump for defendant. This cause was somewhat inartificially stated. However, sufficient was alleged to pass general demurrer. Trial was had upon it and the court found thereon. But in so finding it gave a judgment for $20 more than was pleaded or proved. The judgment must be reduced by this amount.

The third cause of action charged in effect that defendant was bound under its contract to furnish plaintiff with three thousand five hundred dollars worth of work, but that in fact “plaintiff was only furnished by defendant sufficient work to aggregate to him the sum of $3,106.62.” It is further alleged that by reason of this refusal plaintiff suffered damage, first, in the sum of $393.38, and, second, “in the further sum of one thousand dollars for time lost by plaintiff while waiting for defendant to furnish to plaintiff work sufficient to enable him, the said plaintiff, to perform the conditions of said contract by plaintiff thereunder to be performed.” The court found that $493.38 was the difference between three thousand five hundred dollars, the amount in value of the work which defendant was to furnish plaintiff, and the value of the amount of work which defendant actually did permit plaintiff to perform, and the findings declare that this amount “was stipulated by counsel for defendant in open court to be the exact amount of said difference.” It will be remembered that the complaint itself charged this difference as being $393.38. The stipulation to which the court thus makes reference does not bear out the court’s statement of its purport and effect. It was not a stipulation that defendant had furnished only $3,006.62 worth of work, but it was simply a stipulation that “the plaintiff was entitled to receive the sum of $3,006.62 for his work in digging or drilling three wells.” This stipulation was made in reference to the trial of the first cause of action, and it is a stipulation only as to the amount which the plaintiff “was entitled to receive” and not at all as to the amount of value of the work which defendant had furnished. For aught that appears to the contrary, the amount which the plaintiff was entitled to receive might have been materially reduced by setsoff adjusted between the parties during the progress of the work. Clearly, defendant is not bound by this stipulation in the trial of the third cause of action, and the only evidence upon the matter is that supporting plaintiff’s pleading to the effect that that amount was $393.38. The court allowed four-fifths of the