Joyce v. White

Vanclief, C. The defendant, having a contract with the superintendent of streets in the city of Los Angeles, to construct a sewer with manholes and flush-tanks through certain streets in that city, entered into a written contract with the plaintiff, by the terms of which the plaintiff agreed to construct all the manholes and flush-tanks required in connection with the sewer, according to the specifications contained in defendant’s contract with the superintendent of streets, at such time as the defendant might direct, so as not to delay the work of constructing the sewer; to furnish all the material therefor; to do the work subject to the inspection and directions of the superintendent of streets as to manner and materials; and to complete the work in such condition that it would be accepted by the superintendent of streets. The defendant agreed to pay per each manhole and flush-tank $38.50, when the same should [238]be accepted, and a sufficient amount collected from the property owners for that purpose.

The plaintiff alleges in his complaint that after constructing a certain number of manholes and flush-tanks, according to the contract, and while he was proceeding to perform the contract on his part, the defendant wrongfully, and without any justifiable cause, prevented him from completing the same; and that the work done and materials furnished by him under the contract were reasonably worth $633.87, for which he prays judgment.

The defendant admits the contract, and that plaintiff commenced the work, but denies that he prevented the plaintiff from proceeding with or from completing the work according to the contract; denies that the work done or materials furnished were of any value whatever; alleges, as a counterclaim, that plaintiff voluntarily abandoned the work, and failed and refused to perform his part of the contract, to the damage of the defendant in the sum of one thousand dollars, for which he prays judgment.

The case was tried by a jury, whose verdict was for plaintiff in the sum of $464.37, in accordance with which judgment was entered.

The defendant appeals from the judgment, and from an order denying his motion for a new trial.

Counsel for appellant contend that the evidence is insufficient to justify the verdict, in that it does not tend to prove that defendant prevented plaintiff from doing the work according to the contract.