Argenti v. City of San Francisco

By the Court, Rhodes, J.: The first question is, 'what was the judgment of this Court on the former appeal ? Mr. Justice Cope, in closing his opinion (16 Cal. 275) says: “ Our conclusion is that the right of the plaintiff to recover is limited to the amount specified in the contracts to which we have referred, and legal interest upon such amount. The judgment is for a larger sum than the plaintiff is entitled to recover, and must, therefore, be reversed. Upon the return of the cause, the Court below will render a judgment in accordance with this opinion.

“Judgment reversed and cause remanded.”

Mr. Chief Justice Field concurred in the judgment.

Upon the petition for a rehearing, the Chief Justice delivered an opinion which concludes as follows: “ The former judgment must stand, reversing the judgment of the Court below, with directions to strike out so much of the demand as rests upon the warrants alone, and to enter judgment only for the amount due upon the contracts.

“ Rehearing denied.”

Mr. Justice Cope, concurring specially, says: “I concur in the denial of the rehearing and adhere to the views expressed in my original opinion.”

Thus the judgment first rendered was left standing as the judgment of the Court. That judgment was in no respect changed or modified in passing on the petition for a rehearing; and this must be so for two reasons :

First—Because it was not the proper practice, as wras held in Clark v. Boyreau, 14 Cal. 638, to make a material modification of the judgment upon a petition for a rehearing, but if made at all it was to be done after the rehearing was had; and, Second—If any modification was attempted by the Chief Justice, it did not take effect, as it was not concurred in by Mr. Justice Cope, whose concurrence was confined to the denial [462]of the rehearing. In other words, the judgment was left as it would have been had all the language we have quoted from the opinion of the Chief Justice been omitted, except the words, “ Rehearing denied.” As, however, the words in which he stated the judgment were different from those in which it was pronounced, they may serve to assist us in ascertaining what the judgment, about which there is such a conflict among counsel, really was.

The language of Mr. Justice Cope, “ that the right of the plaintiff to recover is limited to the amounts specified in the contracts,” if read literally, is fatally ambiguous, for no amount is specified therein, but when read in connection with the preceding portion of his opinion, the meaning appears to be that the right of the plaintiff to a recovery is limited to the contracts as causes of action, to the exclusion of the warrants. This is the meaning the Chief Justice gave to the language, as appears from the words he employs, to express what had been decided in respect to the causes of action, “ with directions to strike out so much of the demands as rests upon the warrants.”