Barber v. Cazalis

By the Court, Sawyer, J.: The complaint contains two causes of action—the first for an alleged breach of contract between the plaintiff and defendants by which the plaintiff was to give his services in superintending the construction of certain tunnels for mining-purposes in Nevada, for which he was to receive a certain interest in the tunnels and in the mines to be developed; and the second, for moneys advanced and expended by plaintiff in constructing said tunnels for and on account of said defendants, and at their request. The defendants demurred to the whole complaint on the ground of defect of parties in not joining either as plaintiffs or defendants certain other persons, who had entered into another contract relating to the same subject matter, which latter contract was referred to in the sub-contract between plaintiff and defendants. Also, to the first cause of action stated in the complaint on the ground that the facts stated are insufficient to constitute a cause of action. There was no demurrer to the second cause of action stated in the complaint. The demurrer to “plaintiff’s complaint” was sustained and leave to amend given. Afterward “ the demurrer of defendants to the plaintiff’s complaint having been sustained, and the time allowed the plaintiff to amend having expired, and no amended complaint having been filed,” judgment was entered for the defendants. The Court does not seem to have - passed upon the demurrer to the first cause of action set out. It was the demurrer to the entire complaint that was sustained. Such is the natural import of the order and judgment, and it must be so, because the judgment after failure to amend is for the defendants; whereas if the demurrer to the complaint as a whole was not sustained, there was one good count not demurred to, upon which, no answer haying been filed, there must have been a judgment for plaintiff. [96] The only ground of demurrer to the entire complaint is as to defect of parties; and on this point the judgment is clearly erroneous. The plaintiff sued upon an alleged breach of his contract with defendants, to which the other parties named in the complaint are in no way parties. It may be that they also have a cause of action against defendants for breach of their contract with them, but that is no concern of the plaintiff’s. The contract between defendants and Williams, Bass and others, is set out in the complaint, because it is referred to in the contract between plaintiff and defendants for the purpose of designating what plaintiff was to do, and what he was to receive for his services. The parties to the sub-contract, instead of using their own language to describe the work to be performed by plaintiff, and the property to be conveyed to him for his services, referred to the principal contract for that purpose, and to that extent incorporated it in their own. But the contract sued on is the contract of the parties to the suit alone. There is no question of mechanics’ or other liens in it, and none of the other parties have any legal or equitable interest whatever in the matter in controversy. They are neither necessary nor proper parties to the suit brought. So of the Eclipse Tunnel Company. It has no interest whatever in the matter in dispute. The plaintiff alleges that defendants conveyed the property, which by their contract they were to convey to him, to said Eclipse Tunnel Company, for the purpose of showing that defendants had put it out of their power to perform their contract with him. But this state of facts does not place that company in such a position as to render it proper or necessary to make it a party to a suit growing out of a breach of the contract between plaintiff and defendants. There was no defect of parties, and the demurrer to the complaint was improperly sustained. Averment of damages in a complaint for breach of contract. The sufficiency of the first cause of action has also been argued. The contract, the breach and the refusal to make any recompense for plaintiff’s services, to plaintiff’s damage, [97] ten thousand dollars is alleged. The damages thus alleged are general damages, but it seems to us to be sufficient so far as the question arising on demurrer is concerned. The measure of damages is another question, which does not arise in this stage of the proceedings. The plaintiff, it is true, alleges in addition that he rendered his services for a specified time; that by reason of the premises defendants had become liable to pay to the plaintiff what said services were reasonably worth; that they were worth a specified sum; and that although often requested so to do, the defendants had neglected and refused to pay, etc. Conceding the plaintiff to have mistaken his measure of damages, and that these latter allegations are surplusage, still, a contract, a breach and general damages are alleged, and this is sufficient on demurrer. It is not now clear to our minds, however, that plaintiff is not entitled to rescind. He had received nothing from defendants to be returned. He had derived no benefit whatever from what had been done by plaintiff. He got nothing. There was nothing for him to return. The defendants advanced some money, it is true, for the construction of the tunnel, but it went into their own tunnel so far as the contract between them and plaintiff was concerned. It was put just where they wanted it placed. They still had their property, not in the form of money to be sure, but in the form of a tunnel for developing a mine. They had all that they had themselves put in and the benefit of the plaintiff’s services besides, while the plaintiff lost his services, and got nothing from the defendants to restore. If defendants failed to get the tunnel, it was in consequence of the breach of their contract with other parties. Why were the defendants not in statuo quo within the meaning of that phrase as used in this connection ? But it is unnecessary to determine this question now. There was no partnership between plaintiff and defendants created by the contract in question. There was no community of profit and loss. It was' simply an agreement on one side to perform certain services, and on the other side to convey, [98] in consideration of said services, a certain interest in a specific piece of property. Judgment and order sustaining the demurrer reversed, and cause remanded for further proceedings. Sanderson, J., Shafter, J., and Rhodes, J., concurring specially. We concur in the judgment, but do not desire to intimate any opinion as to what is the measure of damages.