Neuval v. Cowell

By the Court, Sawyer, C. J. : This is an appeal from an order granting a new trial, on a private contract to do street work in front of defendant’s lot. A contract had been awarded to B. Bonnet, but a writing purporting to be signed by the major part of the property owners, electing to take the contract themselves, having been presented within the prescribed time, the Superintendent gave the contract to said parties, and a contract was prepared and executed by him, and it purports to have been executed in one form or another by the said parties themselves, in person or by their agents. The defendant was one of the parties, and he signed both the instrument electing to take the contract at Bonnet’s bid, and the contract. But these instruments are not the contract sued on. They served as a means of preventing the contract from going to Bonnet, and, whether rightfully or not, accomplished that object. The contract sued on is a private contract, by which Menant & Co. agreed to do the work in front of defendant’s lot in accordance with the order of the Board of Supervisors and the law, and in accordance with the specifications in the contract awarded to Bonnet, or as stated in another place, with the .contract, which purported to have been made with the property holders—which amounts to the same thing—and to the satisfaction of the Superintendent of Streets. And the price was to be the same as the contract price—that is to say, the price at which the contract was awarded, and at which the property holders purported to contract for the [650]work, less fifty dollars. The fifty dollars abatement was in consideration of Cowell signing the writing electing to take the contract. This contract was performed, and it was for the price that the present action is brought. There is no conflict in the testimony. There was no testimony except the plaintiff’s, and it was all one way. The Court granted a new trial, on the ground that it had improperly admitted in evidence the instrument purporting to be the election of the property holders to take the contract thereunder, and to authorize Menant & Co., as the agents of the property holders, to enter into a contract on their behalf, with the street contractor to do the work, on the ground that the signatures, except that of defendant, were not proved. The Court was of opinion that unless this contract is a valid one, the plaintiff could not recover, and that it could not be valid unless Menant & Co. had authority to make it, and that the signatures therefore must be proved. But this, as we have shown, is not the contract sued on. It is wholly a collateral matter. It is only referred to in the agreement sued on, for the purpose of ascertaining what the work to be done under the contract sued on was; how it was to be done, and the price to be paid for the work to be done by Menant & Co. for plaintiff was to do the same work described in the supposed contract between the street contractor and property holders, and it was to be done according to the specifications therein contained, and for the price there specified, less fifty dollars. That instrument contained a specification of what was necessary to be done, and the price, and it was simply referred to in the contract sued on as containing those matters; and for that purpose it did not matter whether it was legally executed or not. The evidence shows that defendant exe< cuted the agreement, and so furnished the consideration for the fifty dollars reduction. As the contract sued on referred to the others for the matters to be performed—as .matter of description—they were admissible as a part of that agreement, to show what the contract was, and for any other purpose they were foreign to the case. (Hicks v. Coleman, 25