Diamond Coal Co. v. Cook
Before: Chipman
Synopsis
Appeal.—Where Defendant Demurred to the Complaint, but the record did not show that the demurrer was passed on, or that any-ruling thereon was called for, but defendant afterward answered, the demurrer must be deemed to have been waived on appeal.
Pleading.—In Action Against Two, a Complaint Alleging that plaintiff and defendant, on a certain date, entered into a written agreement, and setting out the agreement, was sufficient as an averment that a certain one of the defendants entered into such agreement.
Corporation—Presumption of Authority to Take Land.—Where plaintiff owned a certificate of purchase of state school lands, and the court found that plaintiff was a corporation, but there was no other proof, such certificate is admissible in evidence, as it will be presumed that the corporation had power to purchase and hold lands.
Vendor and Vendee.—In an Action to Cancel a Sale of Land to one, and to enjoin another from removing wood therefrom, on which wood the second defendant claimed a lien by virtue of a promise by plaintiff and the other defendant to pay for cutting it, such second defendant cannot object to the validity of the contract of sale between plaintiff and the first defendant, when offered to prove the issues between them.
Trial—Motion to Strike Out Evidence.—-Where Plaintiff Objected to testimony, and the court reserved decision, and, on reexamination in chief, the evidence was given without objection, it was within the discretion of the court to allow a motion to strike out the evidence without a restatement of the grounds of objection, it being regarded as a renewal of the first objection.
Statute of Frauds.—Where Defendant had Cut Wood on plaintiff’s property at the instance of a third person, and claimed a payment from plaintiff by virtue of a promise to pay, made after the cutting, but defendant had stated that he would hold the wood until he received payment, and that he did not care whether plaintiff or the third party paid, such promise was within Civil Code, section 1624, subdivision 2, declaring contracts to answer for the debt of another invalid unless in writing; and such promise is not valid under section 2794, subdivision 3, providing that such promise is good.where the party receiving it cancels the antecedent obligation, and accepts the new promise as a substitute.
Vendor and Vendee.—Where an Action was Brought to Cancel a Contract for the sale of land to one defendant, and to enjoin another from removing wood from the land, and the defendant to the injunction claimed a lien on the wood for cutting it, and asked for foreclosure thereof, the plaintiff’s action being equitable, as were also the predominant features of the defense, it was not error for the court to set aside the jury’s answers to interrogatories, and substitute findings of his own, though they were contrary to the findings of the jury. t
CHIPMAN, C. Action to cancel a contract of sale and purchase of land, and for an injunction to prohibit the removal of wood from said land. Certain special issues were submitted to and answered by a jury, but the court set these aside, and made findings of its own, and gave judgment for plaintiff, as prayed for in the complaint. Defendant Welch appeals from the judgment, and from an order denying his motion for a new trial.
1. The defendants appeared by demurrer, alleging that the complaint does not state facts sufficient to constitute a cause of action. There is also an attempt to demur for ambiguity, but the statements are not such as to raise an issue of law on this ground. Defendant Cook did not answer and does not appeal. Defendant Welch answered, and the trial seems to have proceeded as though both defendants were in court. So far as appears by the record, the demurrer to the complaint was not passed upon, and it is not shown that defendants called for any ruling upon it, or called the attention of the court to it in any way. Appellant now claims that “the complaint does not state facts.’-’ We presume he means to have us add, “sufficient to constitute a cause of action.” The particular wherein it is now claimed that the complaint was lacking in its facts is that there is no distinct averment that defendant Cook entered into the agreement set out in the complaint. The allegation is: “That on the [giving date] plaintiff and defendant entered into a written agreement, [448].... which agreement is in the words and figures following, to wit.” Then follows the agreement in haec verba. This was sufficient. Appellant does not suggest any other defect in the complaint, or other reason why it is insufficient, and we do not feel called upon to look for others. The demurrer must be deemed to have been waived: Silcox v. Lang, 78 Cal. 118, 20 Pac. 297.
Defendant Welch answered, denying ownership of the land by plaintiff; denying the allegations as to Cook’s entering into the agreement pleaded, or that Cook failed to perform; denying that Cook fraudulently procured defendant Welch to cut wood from the premises, and denying his own insolvency; alleging that prior to December 19, 1895, the date of the contract, he cut about seven hundred cords of wood on the premises, and delivered at Hesperia about five hundred and fifty cords, and that he had about one hundred and fifty cords on the premises not yet hauled, all of which was with plaintiff’s knowledge and consent; that, after this wood was cut, plaintiff agreed to pay defendant Welch for it, and told him that he might look to plaintiff for his pay, and that plaintiff agreed to pay him certain stated prices per cord; admitting that he has threatened to sell the wood, and would have sold it if he had not been restrained. He prays for a dissolution of the injunction, for judgment for $655, and for general relief. In a cross-complaint defendant Welch sets forth the facts as to cutting the wood, as above stated, at plaintiff !s instance and request, and alleges the promise of plaintiff to pay him the prices as previously stated in the answer. The cross-complaint further sets forth that he has been in possession of the one hundred and fifty cords of wood not yet delivered, and still is in possession, and that' he has a lien thereon for work done and service performed. He prays judgment of foreclosure of his said lien; that said wood—presumably the one hundred and fifty cords—be sold to pay his claim, and “if there should be an overplus, that it be applied in payment of said two hundred cords of wood delivered,” etc.; “and if the court should find that cross-complainant is not entitled to have said lien foreclosed, that then cross-complainant have judgment against plaintiff for the cutting of said wood,” and that “he have such other and further relief and judgment as are just and equitable in the premises.” Plaintiff demurred to the answer and cross-complaint
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