Nance v. Dielissen

BRAT, J. Two cases consolidated for trial and appeal. The defendant in ease No. 47384, Dielissen, appeals from a judgment against him and in favor of plaintiff Nance for $2,546.83. In case No. 47414 plaintiff Dielissen appeals from a judgment denying him a recovery against defendant Schmidt.

Question Presented

Insufficiency of the evidence. The cases are purely factual, the sole issue being what was the oral agreement between the parties.

[114]Record

In No. 47384 Nance as assignee of Schmidt sued Dielissen for $2,546.83 on three common counts, (1) on a book account, for goods, wares and merchandise, (2) on a balance due for goods, wares and merchandise, and (3) on a stated account. The basis for these counts was the purchase price of a tractor sold to Dielissen and paid for by Schmidt. Dielissen then in No. 47414 sued Schmidt on five causes of action. The first was for alleged loss of $25 per lot profit on 114 lots, totaling $2,850. The second and third were for $1,310, based on a claimed withholding by Schmidt of $10 per lot. The fourth cause was to foreclose a mechanic’s lien for $695.75 and the fifth for the same amount on a common count, both for work, labor and services. The court found generally in favor of Schmidt’s version of the contract and gave judgment in the first action for $2,546.83 against Dielissen and in favor of Nance. In the second action judgment went in favor of Schmidt that Dielissen take nothing under the first three causes of action but that Dielissen recover judgment against Schmidt for $595.75, with interest, and that the mechanic’s lien thereon be foreclosed.

Evidence

The difficulty arises out of an oral agreement which was not too definite in the beginning and which was varied by the action of the parties. Its solution depends, in considerable degree, on which party is believed. The court obviously believed Schmidt’s version. In view of the conflict we are bound by the trial court’s determination.

Max Schmidt is the developer of a certain tract in the city of Millbrae. This tract contains 350 homes, of which 32 are corner lots. In the spring of 1947, 50 of these homes were under construction, but none were corner lots. This was when Schmidt first met Dielissen, a gardening contractor. Schmidt wanted Dielissen to put lawns in front of the houses, which Dielissen did at the price of $36 each. Dielissen put in 30 of such lawns. After Dielissen put in the first 10 lawns, Schmidt complained because the work was going too slowly. Dielissen replied that for more speed a tractor would be needed and that Schmidt should buy it for him and be repaid over a period of time, at the rate of $10 to be deducted from the price of each job. Dielissen claims that it was understood he was to have all the lawns. Yet he admits that at no time did he agree to do all the lawns. Schmidt claims that there