Gilliam v. Brown

McFARLAND, J.

—Action to recover one thousand dollars for the construction of a certain cut or ditch under an alleged contract between plaintiff and defendants. A jury was impaneled to try the cause, but, after plaintiff had introduced his evidence; the court granted a nonsuit, and judgment went for defendants. Plaintiff appeals from the judgment and order denying a new trial, and also from an order denying his motion to amend the complaint. The case was here before, and as its main features appear in the.opinion on the former appeal they need not be noticed now in detail.

(Gilliam v.

Brown, 116 Cal. 454.)

In the complaint, after averments of the contract and the completion of the ditch by plaintiff, it is further averred that the defendants “accepted said ditch so constructed,” and on the former appeal a judgment for plaintiff, which seems to have been based entirely upon the alleged acceptance of the ditch by defendants, was reversed on account of an erroneous instruction, and because there was not in the record “any evidence whatever of an acceptance of the work.” But it was not held that acceptance was necessary to a recovery; on the other hand, this court said: “By the terms of this contract, as shown by the proposal

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for bids, plaintiff was entitled to Ms money when a cut was made sufficient in capacity and grade to carry all the waters of Whitney creek at all times.....He was not reqmred to wait for two years, and then show that the ditch had carfied all the water atJall times, to enable him to recover.” But at the second trial, which gave rise to this present appeal, the court below seems to have acted upon the theory that evidence of an acceptance was necessary to plaintiff’s recovery. As to the matter of the nonsuit the record shows the following: “Nonsuit.—The defendants’ counsel here move for a nonsuit on the ground that the plaintiff has averred upon a written contract, and there is no evidence before the court of a written contract between the plaintiff and the defendants;

2.

That there is no evidence of any acceptance of the work; which motion was granted on the second ground by the court, and plaintiff’s counsel excepted.” From this it appears that the nonsuit was granted upon the sole ground of want of evidence of acceptance. The first ground was certainly not tenable; for plaintiff introduced a written proposal for bids to do the work (copied in the opinion on the former appeal,