Hartson v. Hardin
Before: Crockett, Expressed, Sprague
Synopsis
Appeal from the District Court of the Seventh District, Napa County.
The complaint sets forth, that plaintiff, who is an attorney at law by profession, was employed by defendant in October, 1861, to apply for and procure a patent for a certain rancho in Napa County, in which defendant claimed under Julian Pope, deceased, an undivided one fifth interest, and to induce certain settlers or squatters residing upon portions thereof to remove therefrom, or otherwise to relieve the premises of their possession or adverse claims, defendant undertaking, upon the receipt of the patent and the relief of the premises from,said squatters, to pay plaintiff so much as said services for defendant should be reasonably worth ; that in pursuance of said agreement plaintiff took the necessary steps to procure the said patent, and in due time procured the issuance thereof, and the same was duly received by the heirs and patentees, on or about the 21st day of October, 1864 ; that before, the day last aforesaid plaintiff had relieved the said rancho from all the squatters, who had been in possession adversely as aforesaid ; and that the services so rendered by plaintiff were reasonably worth the sum of eight hundred dollars, which the defendant became liable to pay on the said 21st day of October, 1864,
Defendant, in his answer, denied the allegations in the complaint, and alleged that the services-were all done and performed, if at all, more than two years prior to the institution of this suit, and that all claims and demands against defendant in consequence thereof, if any, are barred by the Statute of Limitations.
The Court found that the services had been performed, and that the defendant had promised to pay for them, and rendered judgment for defendant on two grounds: First. That plaintiff’s cause of. action did not occur within two years of the filing of his complaint herein, and the same was barred by the Statute of Limitations. Second. That the services rendered by plaintiff were not proved to be of any value.
First — The defendant’s plea of the Statute of Limitations was not good.
1st. The plea was hypothetical. The allegation was “that the various services alleged in plaintiff’s complaint to have been done and performed, were all done and performed, if at all, more than two years,” etc. “It is not good pleading to say ‘ if any ditch or trench was dug, it was done without tbe knowledge,’ ” etc. (Van Santvoord’s Pleading, 201; Weir v. Fanning, 9 How. Pr. Bep. 545.)
2d. Tbe answer did not state facts sufficient to constitute a defense under tbe Statute of Limitations. (Shroeder v. Johns, 27 Cal. 279; Table M. Co. v. Stranahan, 31 Id. 393; Liclc v. Diaz, 30 Id. 65.)
Tbe defendant alleged that tbe services were done and performed more than two years, but failed to allege facts showing that tbe cause of action accrued more than two years before tbe commencement of tbe actiom
Crockett, J., delivered tbe opinion of tbe Court, Bhodes, C. J., Wallace, J., and Temple, J., concurring:
Tbe defendant’s plea of tbe Statute of Limitations was not well pleaded. Tbe contract, as set out in tbe complaint. [267]was that tbe plaintiff’s services were to be paid for when tbe patent for tbe ranch should be received by tbe parties in interest. Tbe plea does not aver that tbe cause of action accrued more than two years before tbe commencement of tbe action, but only that tbe services contracted to be rendered by tbe plaintiff were rendered more than two years before action was brought. If tbe facts alleged in tbe plea were conceded to be true, they would not establish that tbe demand was barred by tbe statute.
Tbe Court find that tbe plaintiff duly rendered tbe services specified in tbe complaint, but that there was no proof of their value. If this be so, tbe plaintiff was at least entitled to nominal damages. But proof was admitted, after objection, tending, in some degree, however remotely, to establish tbe value of plaintiff’s services; and if tbe Court intended to wholly disregard it as irrelevant or incompetent, it should have stricken it out on tbe trial, and have afforded tbe plaintiff an opportunity to produce other evidence, if be desired to do so. But first to admit it as competent evidence and then to bold in tbe findings that there was no proof whatever of tbe value of tbe services, was well calculated to operate a surprise on tbe plaintiff. (Carpentier v. Small, 35 Cal. 347.)
Judgment reversed and cause remanded for a new trial.
Sprague, J., expressed no opinion.
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