Joshua Hendy Machine Works v. Pacific Cable Construction Co.

De Haven, J. The complaint in this action is in two counts. In the first it is alleged that the defendant is indebted to plaintiff in the sum of $4,566.55, “the siime being the balance of an account for goods, wares, and merchandise .... sold and delivered by plaintiff to defendant, and for work and labor and services performed thereon and in connection therewith, by plaintiff, at defendant’s .... request . . . . ; that the whole amount and aggregate value of the items of said account is the sum of $35,744.35, no part of which has been paid except the sum of $31,177.80, leaving the aforesaid balance of $4,566.55 still due and unpaid.” In the statement of what is termed “a further separate cause of action,” the complaint alleges that “plaintiff sold and delivered to defendant .certain goods, wares, and merchandise, and performed work and labor in connection therewith at defendant’s .... request, all of which were of the reasonable value of and at the agreed price of $35,744.35, which said sum defendant promised and agreed to pay therefor, but that he has refused and failed to pay said sum, or any part thereof, except the sum of $31,177.80.” The prayer of the complaint is for a judgment against defendant for the sum of $4,566.55, with' interest thereon from June 13, 1890.

[423]The answer of the defendant joined issue with the allegation of the complaint as to the value and agreed price of the goods sold and work and services performed, alleging that the whole value thereof and price agreed to be paid therefor did not exceed $30,000, and further alleged that plaintiff had been fully paid. The plaintiff recovered judgment in the superior court for tlie sum of $788,54, with interest thereon from the date of the commencement of the action until the rendition of the judgment, amounting in all to $892.85 and costs. The defendant appeals.

1. The order made by the court .without the consent of the parties, referring the cause to a referee “to state an account between the parties and report a judgment and findings in said cause,” which was in effect a reference of the whole case for trial, was not authorized by section 639 of the Code of Civil Procedure. The action is an ordinary action at law, for the recovery of an alleged indebtedness, and in such cases the court should not make a reference for the trial of all the issues therein, except upon agreement of the parties. (Seaman v. Mariani, 1 Cal. 336; Grim v. Norris, 19 Cal. 140; 79 Am. Dec. 206.) But the defendant did not reserve any exception to the order of reference, and not having done so, cannot now insist upon the error of the court in making the order, as a ground for the reversal of the judgment.