Sims v. Petaluma Gaslight Co.

GRAY, C. Defendant appeals from a judgment in plaintiff’s favor and from an order denying its motion for a new trial. This action was brought to recover $4,000 alleged in the first count of the complaint to be due under a contract whereby the assignors of plaintiff, Lewelling and Van Syckel, agreed to and did build and erect certain water-gas apparatus at the gasworks of said defendant in Petaluma, for the purpose of manufacturing gas from crude oil or distillate by a process known as the “Van Syckel Water-Gas System.” It is also alleged in said first count that the work in the construction of said gas plant was to be done in a workmanlike manner, and said plant was to have a capacity of three thousand cubic feet per hour of twenty-two to twenty-three candlepower gas, etc.; also that by the terms of said agreement defendant was to pay said Lewelling and Van Syckel therefor the sum of $4,000 in certain amounts and on certain dates therein alleged. The second count of the complaint is in the nature of a common count for the work and labor and materials furnished defendant by said assignors of plaintiff in the construction of said water-gas apparatus, which are alleged to be of the reasonable value of $4,000. The answer does not deny the making of the contract as alleged in the [542]complaint, but, in addition to some denials of mere conclusions of law, it denies that plaintiff’s assignors “finished or completed the erection and construction of the said plant according to the terms of the agreement entered into and set out in said plaintiff’s complaint; but defendant alleges that said gas plant constructed by plaintiff’s assignors did not and does not make the quantity of gas stipulated for in said agreement, and does not and did not make a gas of twenty-two or twenty-three candle-power.” In answer to the second count of the complaint, the defendant denies that the work, labor and materials furnished are of any value; also denies that $4,000 was agreed to be paid therefor; and alleges “that the said apparatus is of no value, and does not and will not make gas in quantity and quality according to the terms of said contract.” There is no denial that the labor, service, and material were performed and furnished as alleged in said second count. For a “separate answer,” defendant alleges “that the said S. W. Van Syckel, on the thirty-first day of July, 1896, purchased of I. G. Wickersham, then the owner thereof, all the stock of the said Petaluma Gas Company, except five shares, for the sum of sixteen thousand five hundred dollars, paying thereon the sum of one thousand dollars, and giving his note for the balance, payable in two years, at six per cent interest; that to secure the payment of the said note S. W. Van Syckel transferred the stock to the said I. G. Wickersham, and agreed, as a further security for the, payment thereof, to erect and attach to the said plant of the said Petaluma Gas Company his water-gas system; that, while so the owner of the whole stock of the said gas company as aforesaid, he entered into the agreement set out in the plaintiff’s complaint with himself and the said Lewelling to construct the said water-gas system; that no demand has ever been made for the payment of the said sum of four thousand dollars, or any other sum; that the said S. W. Van Syckel neglected to pay the said indebtedness to the said I. G. Wickersham, and the said property reverted to the said I. G. Wickersham, the said S. W. Van Syckel having the use and occupancy of the said property during all the time since the said contract without other' consideration.” The pleadings were verified. The case was tried before the court without a jury, and the findings affirm the truth of the allegations of the complaint, and negative the affirmative allegations of the