Kreuzberger v. Wingfield

De Haven, J. — Action to recover an alleged balance for work done .aud materials furnished by plaintiff to defendant in the construction of a sidewalk in the city of Sacramento. The plaintiff recovered judgment in the superior court, and the defendant appeals.

The claim made by the plaintiff in the court below was, in substance, that by the terms of his contract he was to erect a wooden and cement sidewalk for .defendant, with a brick bulk-head around its outer edge, the portion on Eighth Street to be made of new lumber, except that the old posts were to be used as supports for it, [254]the new lumber to be of the usual size and quality for such work, and to be covered over with a good quality of cement four inches thick, etc., and that part of the sidewalk to be placed on I Street was to be made of the best of the lumber taken from the old sidewalk around the premises at the time of making the contract, except that the top was to be covered with new one-inch redwood lumber, upon which was to be laid the cement. On the other hand, the defendant, in his answer, alleged that there was no agreement that old lumber should be used in the construction of the sidewalk referred to, but that it was “agreed between the parties that the said carpenter-work should be first class in all particulars, and that the materials should be new, strong, and of the best kind. It was further understood and agreed that the said work and labor should be performed in first-class manner, and that the work and materials should in all matters comply fully with the ordinances and directions of the city of Sacramento,” etc.

The answer further alleged that the work was not performed according to this contract; that the old lumber used was weak, decayed, and broken, and the sidewalk, as constructed, unsafe and insecure.

1. Upon the trial, plaintiff introduced oral evidence tending to show the making of the contract with the agent of defendant, and that its terms were as contended for by plaintiff. It appeared, however, that after the oral negotiations were fully completed, and the terms of the contract agreed on, and about the time plaintiff commenced the work of building the sidewalk, he made and signed the following writing, and gave the same to the defendant or his agent: —

“ To Right Rev. Bishop Wingfield.

“ Contract for brick bulk-head to be built in this man- -;- ner: Four feet six inches between buttresses to two brick or seventeen inches —.............—- thick, and to be tapered in as you see the pier on outer side; the circle wall to be eight inch,