Bancroft v. San Francisco Tool Co.

SEARLS, C. This is an action to recover damages from the corporation defendant, alleged to have been sustained by plaintiff by reason of the fall of a passenger elevator erected by said defendant for plaintiff in the History Building, Market street, San Francisco. Defendant, among other defenses to the action, set up the bar of the statute of limitations as found in subdivision 1 of section 339 of the Code of Civil Procedure, which provides that “an action upon a contract, obligation or liability, not founded on instrument in writing, or founded upon an instrument of writing executed out of this state,” shall be brought within two years. At the trial, and upon the close of plaintiff’s testimony, defendant moved the court for a nonsuit, which motion was granted, and judgment entered in favor of defendant for costs. This appeal is from an order of the court denying a motion on behalf of plaintiff for a new trial.

Whether or not plaintiff’s cause of action is barred by the statute of limitations is the only question necessary to be con-, sidered- on this appeal. Some minor questions were made [588]at the trial, none of which, however, have any bearing upon the main point, viz., the bar of the statute; and, manifestly, if the cause of action was barred, the nonsuit was properly granted, while, if not so barred, the nonsuit was clearly erroneous, and a new trial should have been granted. It appears from the record that early in 1887 the plaintiff was engaged in the construction of ivhat is known as the “History Building,” on Market street, San Francisco—a building consisting of five stories and a basement; that he required three elevators therein, viz., two freight and one passenger elevator. On the fourth day of April, 1887, the defendant corporation submitted to plaintiff a proposition in writing, which is in part as follows:

“San Francisco, April 4, 1887.

“A. L. Bancroft & Co., City:

“We will furnish' three hydraulic elevators as follows, and as per plan submitted with this specification.

“Elevators: Three hydraulic cylinders complete, with elevating sheaves mounted on same as shown on plan.

“Details of erection: 1,300 feet of %-inch wire rope.”

Then follows a long list of materials to be furnished, consisting of iron sheaves, shafting, counterweights, water-gates, casing, elbows, cast-iron tees, flanges, sewer-pipe, steam pump, tank, cages, “one cage to be made for carrying passengers, ’ ’ etc., which need not be mentioned in greater detail. The offer proceeds as follows: “We will furnish the work heretofore mentioned in a first-class, workmanlike manner for the sum of five thousand dollars ($5,000), guaranteeing these elevators for one year; that is to say, we will keep them in first-class order for one year, free of charge to you. Payments to be made as follows: On completion of the two freight elevators we to receive two thousand dollars, and on the completion of passenger elevator we to receive fifteen hundred dollars, and after thirty days’ satisfactory running we to receive balance due on contract. ’ ’ The proposition was accepted by plaintiff on or before April 6, 1887, except that by mutual agreement the payments were to be made in monthly sums of $500 each, the first payment of $500 being made by plaintiff on said April 6, 1887. The elevators were constructed by defendant, and the final payment on account thereof was made February 15, 1888. It is not quite clear from the testimony when the elevators were completed.