Rauer v. Fay

CHIPMAN, C.

The cause was here once before and is reported in

Rauer v. Fay,

110 Cal. 361. The action there was to enforce a mechanic’s lien for certain street work done under a contract entered into between the plaintiff’s assignor and defendant. The plaintiff had judgment, which was reversed. It was held that the contract was too uncertain and indefinite to entitle it to be admitted under the allegations of the complaint, but it was suggested that “possibly had the contract been set out in the complaint, with proper averments of the intention, and object of the parties, it might upon proof have been so reformed as to be available as a basis of recovery.” The amended complaint sets forth the contract in its legal effect, and not by its terms, and does not ask for its reformation; it calls for a personal judgment, and the matter of lien is eliminated. At the trial defendant had judgment, and, on plaintiff’s motion, the court made an order granting a new trial. Defendant appeals from the order. The trial was by the court without a jury, and it made general findings as follows: “1. That none of the allegations of plaintiff’s complaint are true; 2. That all the allegations of defendant’s answer are true.” And as conclusion of

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law therefrom: “That defendant is entitled to judgment against plaintiff for his costs/’ and judgment was accordingly entered.

Plaintiff in his specifications of particulars pointed out several averments of the complaint which, as is claimed, in fact were fully supported by the evidence, but which the court found to be untrue. At the former trial, when the contract was offered in evidence it was objected to, but the objection was overruled. The ruling was held to be error on appeal, for the reasons above stated, and that it should have been excluded. At the last trial the contract was admitted in evidence without objection, and witnesses were permitted, without objection, to state the work performed pursuant to the contract.

Defendant denied specifically the allegations of the complaint and pleaded, by way of a second defense, a release and full acquittance, and also a third defense based upon certain ordinances of the city which required a permit from the superintendent of streets, based upon a contract signed by three-fourths of the property owners, on the portion of the street where the work was proposed to be done. There is no specification of insufficiency of evidence to sustain the last two affirmative defenses, and appellant claims that as to these the statement must be disregarded (citing Code Civ. Proe., sec. 659); and it is contended that if either of these defenses is good the judgment should stand and the new trial should have been denied.