Biggerstaff v. Briggs

By the COURT. 1. Appellant contends the verdict was not sustained by the evidence, because the evidence showed, while the complaint does not allege, that it was part of the agreement between the parties that the axle of the ditching machine.should be shortened, if necessary, so that the wheels should run between the rows of vines. But it was not necessary to allege, as part of the contract, that the machine should be so employed as not to injure defendant’s grapevines. Stipulations necessary to make a contract reasonable are implied: Civ. Code, 1655. “If the parties expressly provide, not anything different, but the very same thing which the law would have implied, this provision may be regarded as having been made twice—by the parties and by the law.....

The expression of those things which the law implies works nothing”: 2 Pars. Cont., side p. 515.

2. Appellant also contends the contract proved differed materially from the contract alleged, in that the evidence shows the contract to have been that the ditch was to be ten inches wide and twenty inches deep, with a concave bottom, suitable for the reception of irrigating pipes, while the complaint alleges the ditches “were to be cut of uniform width of ten inches, and excavated to a uniform depth, of twenty inches. ’ ’ The complaint, however, alleges the ditches were to be cut with a certain machine, which, there was evidence tending to prove, would form a concavity at the bottom.

3. The court did not err in sustaining the objection to the question asked the witness Gould, as to how much it would be worth to excavate a ditch in a manner materially different [341]from the mode provided in the contract, as alleged in the complaint. The court charged the jury: “In this case the plaintiff must prove the contract as alleged in the amended complaint, and, unless you find from the evidence that the defendant agreed upon and understood all the parts of the contract, as set forth in said amended complaint, you must find a verdict for the defendant.”

Evidence of the expense of digging a ditch in a manner materially different from the mode provided, as a test of value, in the contract alleged by plaintiff, was irrelevant, because plaintiff was not entitled to recover anything unless the actual contract was substantially the same as that by him alleged.

4. The instructions requested by defendant (the same being copied from two separate subdivisions of section 2061 of the Code of Civil Procedure) had already been given by the court.