Hidden v. Jordan

By the Court, Sanderson, J.: This case has been here before on two occasions, and will be found reported in 21 Cal. 92, and 28 Cal. 301. On the last occasion the judgment was reversed and the findings, so far as they related to the account between the parties, vacated, and as to the account, a new trial was granted or a re-accounting directed. Upon the return of the case to the Court below, it was referred to the Court Commissioner for the purpose of taking the account between the parties and reporting a judgment. The Commissioner having made his report, the plaintiff moved for a new trial, which was granted, and the case was again referred. The defendant has appealed from the order granting a new trial.

In taking the account for the year 1859, the referee found that the defendant had expended the sum of one thousand two hundred dollars in building a stone wall upon the premises ; that said stone wall was necessary for the protection of the crops, and that it enhanced the rental value of the farm. He therefore, in stating the account for that year, charged the plaintiff with that sum. He also found that for the years 1858 and 1859 the defendant had paid taxes on the farm to the amount of one hundred and ninety-five dollars and nine cents, which sum he also charged against the plaintiff, making the plaintiff’s debits for that year amount to one thousand three hundred and ninety-five dollars and nine cents. He further found that the defendant received seven hundred and [399]twenty dollars as net profits of the farm for that year. This sum he deducted from the amount of the plaintiff’s debits for the same period (one thousand three hundred and ninety-five dollars and nine cents), leaving a balance against the plaintiff in the account for that year of six hundred and seventy-five dollars and nine cents.

It is claimed by the plaintiff that the finding that the defendant expended the sum of one thousand two hundred dollars in building a stone wall in 1859 is contrary to the evidence, and hence that the referee erred in charging the plaintiff with that sum in the account for that year.

We have examined all the evidence bearing upon the question to which our attention has been called by counsel. The record contains one hundred and thirty printed pages, and it is the duty of counsel to refer us to all the evidence bearing upon the question, and we assume that they have done so. Such being the case, we are unable to account for the finding in question. The defendant himself testified that he built in person during that year one hundred and twenty-four rods of stone wall; that two thousand yards more were built by one Fowler, who owned adjoining land, as a division fence between them, under an agreement that Fowler was to do the work and the defendant to furnish the materials. How, as appears from the evidence, the materials were stone dug from the farm. They were then a part of the farm, and as much the property of the plaintiff as the land from which they were taken. Clearly, then, the farm furnished the materials and not the defendant. Fowler did all the work, as the defendant himself testifies. There was no expense, then, in connection with the two thousand yards built by Fowler which could be a charge in favor of the defendant against the plaintiff.