Jensen v. Union Paving Co.

BRAY, J. In an action for breach of an alleged oral contract, the superior court rendered judgment that plaintiff take nothing. Plaintiff appealed.

[638]Question Presented

Plaintiff recognizes the well established rule that all reasonable inferences are to be indulged in support of the judgment and that, in order to reverse it, this court must hold that there is no substantial evidence to support the judgment. Plaintiff contends that there is no such evidence in this case. There is no merit to this appeal. In his opening brief, plaintiff quotes merely the evidence favorable to his contention, completely ignoring the defendant’s evidence and the inferences which the court had the right to draw from the inconsistencies in the plaintiff’s own testimony, and the fact that the court had the right to disbelieve plaintiff.

Evidence

Plaintiff’s entire claim of a contract with defendant is based upon alleged conversations with one Corson who was defendant’s general superintendent in charge of all its construction work in question here. Corson died prior to the filing of the complaint in this action, and hence his version of the conversations was unobtainable. Plaintiff’s testimony follows: About January 28, 1947, Corson asked him to submit a price for the installing of sewers and drains on what was called the “Yew Avenue job. ’’ The pipe for the job had been ordered by defendant and was on the ground at that time. On January 30 plaintiff gave his written bid to Corson in the defendant’s San Carlos office. Corson said he would “take it under advisement. He would check it over. ’ ’ On February 11, Corson told plaintiff his “prices were o. k.,” and he could start on the job, and asked him how soon he could start. Plaintiff told him within a week. Plaintiff had no further conversation with Corson about the job except that on one occasion, probably around the 14th. or 15th of February, Corson asked plaintiff if he knew anything about any of the pipe disappearing “up there.” Plaintiff said he did not. On February 17, plaintiff learned that Corson had given the job to one Jarvis, and yet did not discuss the matter with Corson. On cross-examination plaintiff reiterated that he had not talked to Corson or anyone else about the job prior to his talk with Corson on January 28; yet he admitted giving Corson a bid dated January 25, which differed from the copy of the bid which he said he gave Corson on January 30 in that it contained a provision for progress payments and a space for acceptance, neither of which were on the January 30 bid. The bid dated January 25 was stamped “Feb 20 1947” which