Ferrea v. Chabot
Before: Beatty, McFarland
Synopsis
'Trial—Waiver of Jury—Relief from Stipulation—Discretion.—As a general rule, a party should be relieved from a stipulation waiving a jury, when the same can be done without injury to either party, and without disarranging the orderly conduct of the business of the court; and such a stipulation should not be looked upon as a contract made upon a valuable consideration, which ought not to be set aside except upon proof of fraud or mistake, etc. But the court has a discretion in the matter, and its order refusing to set aside the stipulation will not be disturbed when no gross abuse of discretion appears.
Id.—Refusal of Relief not Conclusive—Trial by Court in Another Department—Waiver.—The refusal of relief from a stipulation waiving a jury in one department of the superior court is not conclusive against an application for a jury trial in another department where the case is to be tried, especially where other reasons may be urged for avoiding the stipulation; nor is the discretion exercised by one judge in refusing relief from the stipulation conclusive against a different exercise of discretion by another judge before whom the case is tried; and if it is tried before such other judge without objection, and without any application for a jury trial before him, the right of trial by jury is finally waived, and cannot be considered as denied.
Breach of Contract—Water Supply—Unliquidated Damages—Interest.— In an action for damages for breach of covenants in a contract to lay pipes and supply water for irrigation and domestic use, where it appears from the complaint and from the nature of the action that the damages sought to be recovered are unliquidated and uncertain, and are not capable of being made certain by calculation within the meaning of section 3287 of the Civil Code, interest thereon cannot be recovered prior to judgment under the provisions of that section.
Id.—Construction of Contract—Lease—After-acquired Land.—A contract to supply water on certain premises owned by the plaintiff at the date of the contract is confined to those premises, and does not extend to other property leased therewith by the plaintiff to a tenant, nor to any other land acquired by the plaintiff after the date of the contract, and evidence offered to show damage to such other property is properly excluded.
Opinion — McFarland
McFARLAND, J. This action is brought to recover damages for the alleged violation of a written contract entered into on the third day of February, 1870, between plaintiff and one A. Chabot, by which Chabot covenanted to supply the .plaintiff with certain water for domestic and irrigating purposes. Chabot afterward made a certain assignment and transfer to the Vallejo City Water Company, which is also made a party defendant, and it is admitted that the company is liable upon said contract to the same extent as Chabot. Chabot died during the pendency of the action, and Hiram Tubbs and Ellen A. Chabot, executor and executrix of his will, were substituted in his place as defendants. The court below made its findings and rendered judgment in favor of the plaintiff for damages in the amount of four thousand eight hundred dollars and costs, but without interest prior to the date of the judgment. Plaintiff, being dissatisfied with the amount of the judgment, and claiming that it should have been for a larger amount, appeals from the judgment and from an order denying his motion for a new trial.
Counsel for appellant have in their brief presented their side of the case in a very systematic, clear, and able manner, but, after having given full consideration to their arguments, we are not able to see any sufficient reasons for reversing the judgment. If we do not notice in detail all the views set forth by counsel for appellant, it is not because we have not fully considered them. The contentions for a reversal which are most fully presented in the argument of counsel are: 1. That the court below “denied plaintiff's constitutional and statutory right to a trial by jury”; and 2. That the court erred “in refusing to allow interest upon our claim from the time of suit brought.”
1. The trial of the case, which resulted in the judgment appealed from, took place in February, 1894, in Department Ho. Four of the superior court of the city and county of San Francisco, before Hon. J. C. B. Hebbard, judge of said court, sitting in said department. Ho demand for a jury was made at that time in said department, or to said judge; and the appellant en[235]tered upon and proceeded throughout the trial without any intimation that he desired a jury. This was, therefore, a waiver -of a jury, if we consider alone the occurrences which then took place. (Pfister v. Dascey, 65 Cal. 403; Boston Tunnel Co. v. McKenzie, 67 Cal. 485.) It is contended, however, by appellant, that he is in the position of having had a jury trial denied him on account of certain things which happened more than a year previous to the trial before Judge Hebbard. It appears -that on February 11, 1889, Henry C. McPike and P. 0. Morbio were the attorneys of appellant, and on that day signed a stipulation waiving a jury trial. Prior to September 30, 1891, the present attorneys for appellant were substituted as his attorneys; .and on that day they filed an amended and supplemental complaint. This complaint contains some averments which were not in the original complaint, the principal amendments being 'the averments which set up the death of Chabot, the presentation of the claim sued on to his executors, etc., and the additional fact that the alleged acts of the respondents in violation of said contract were done wantonly, oppressively, etc., and warranted punitive damages. Afterward, on January 4, 1894, appellant made a motion to set aside the stipulation waiving a jury, and to place the cause on the jury calendar. This motion was made in Department Five of said court, and before a judge other than Judge Hebbard, and in Department Five, and before the other judge, the motion to set aside the stipulation was denied. This motion was made more than a year before the commencement of the trial before Judge Hebbard, and it was denied more than ten months before that time. The motion was based entirely upon the ground that the filing of the amended and supplemental complaint, and of the answer thereto, had raised issues not pending at the time the stipulation was made. We do not deem it necessary to determine definitely whether or not the judge of Department Five erred in refusing to set aside the stipulation. We think that, as a general rule, a party should be relieved from a stipulation waiving a jury, where the same can be done without injury to the other side, and without disarranging the orderly conduct of the business of the court. Such a stipulation should not be looked upon as a contract made upon a valuable consideration, which ought
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