Waugenheim v. Graham

Crockett, J., delivered the opinion of the Court: The evidence, offered by the defendant, to the effect that the time for the delivery of the lumber was extended by a — 174 — parol agreement, was properly admitted. Whilst the rule is axiomatic, that the allegata et probata must correspond, and that whatever is essential to be proved must be sufficiently averred in the pleadings, we think that the rule was not violated in this case. The written contract required the lumber to be delivered by the first day of April, 1868; but the answer avers that it was to be delivered “at any time prior to the starting from defendant’s mill, of what is usually known as- the Carson River Wood Drive, during the year 1868,” and then avers that the “River Drive” did not leave the mill until on or about July 6, 1868. When the written contract was offered - in evidence by the defendant, if the plaintiff had objected to its admission on the ground of variance, the objection would have been well taken. But it was admitted without objection on that ground, and the defendant then offered to prove that the time stipulated in the contract for the delivery of the lumber had been waived by a parol agreement, and extended until the wood drive should leave the mill. The plaintiff objected to this evidence on two grounds only, to wit: First — That the defendant had alleged in the answer no other contract than that which was embodied in the written agreement; and, Second-—-That the written instrument could not be altered or varied by parol. The first point was not well taken; for the answer does not set out the written contract, nor aver that by its terms the lumber was to be delivered on or before the 1st of April, 1868. On the contrary, the averment is that it was to be delivered on or before the time when the wood drive should leave the mill. When the writing was produced in evidence, the time for delivering the lumber therein stipulated appeared to be not the time -averred in the answer, but the 1st day of April; and, as before stated, if it had been objected to on the ground of the variance, the Court ought to have excluded it as the pleadings then stood. But in that event, the defendant would, doubtless, have been allowed to amend his answer, and thus obviate the difficulty. But the writing having been admitted in evidence without objection, the parol proof offered to show an extension of the time for delivery was not at variance with the answer which averred — 175 — the time for delivery to be on or before the time when the wood drive should leave the mill, which was the precise point offered to be shown by parol. The variance was between the written contract when produced and the averments of the answer, and was waived by the plaintiff by his failure to object at the proper time. But there was no variance between the answer and the parol proof which was offered. Certainly there was none which, under Sections 70 and 71 of the Practice Act, would justify us in reversing the judgment on that ground. (Peters v. Foss, 20 Cal. 587; Began v. O'Reilley, 32 Id. 14; Carpentier v. Small, 35 Id. 363.) The second ground of objection to this evidence was equally untenable. It is well settled, that the time for the performance of a simple contract in writing may be waived or extended by a subsequent parol agreement. It is clearly competent for the parties to waive by parol a strict performance in point of time. (4 Cow. and Hill, Notes 610, n. 301; Keating v. Price, 1 John. Cas. 22; Perrine v. Cheeseman, 6 Halst. R. 177; Dearborn v. Cross, 7 Cow. R. 49; Fleming v. Gilbert, 3 John. R. 528; Luckhart v. Ogden, 30 Cal. 547.) The ruling of the Court in denying the plaintiff’s motion to strike out the several counts of the defendant’s counter claim or cross complaint, is relied upon as error; but the defendant insists that this ruling cannot be reviewed on this appeal, which is only from the order denying the plaintiff’s motion for a new trial, the appeal from the judgment having been dismissed for want of prosecution. But-it is unnecessary for us to decide this point, inasmuch as the plaintiff on the trial objected to all the evidence offered in support of the counter claim or cross complaint, on the ground that, if proved, the facts averred constituted no defense to the action, nor a sufficient basis in law for a counter claim or cross complaint. It is well established in this Court, that if a pleading contains no cause of action or defense, the adverse party may object at the trial to the proof of the facts alleged, on the ground that, if proved, they would not avail the party. It would be a vain thing to consume the time of the Court in making proof of facts which, when established, show no cause of action or defence, as the case — 176 — may be. If, therefore, the counter claim or cross complaint, on its face, exhibited no defense to the action, nor any cause of action against the plaintiff which could avail the defendant as a counter claim or cross complaint under the Practice Act, the Court ought to have excluded the proof offered to support it; and if it erred in this respect, the error was a proper ground for new trial. It becomes necessary, therefore, to examine the pleading, which is termed in the record a cross complaint. The plaintiff’s counsel insists that the several counts of this pleading, except the first and second, allege mere naked trespasses by the plaintiff upon the property of the defendant, committed after the commencement of the action, and in no wise connected with the subject-matter of it. An inspection of the cross complaint establishes beyond cavil that such is its character. The third count charges that the plaintiff wrongfully, unlawfully and by force, took possession of the defendant’s saw mill, tools, buildings, timber, rvagons, horses, provisions, etc., and forcibly kept the possession thereof, used the mill for the manufacture of lumber, and converted the personal property to -his own use. The fourth count alleges the wrongful conversion by the plaintiff of forty cords of wood of the defendant. The fifth charges that the plaintiff wrongfully and unlaAvfully used a horse of the defendant for four days; and the sixth, that the plaintiff, Avhilst in possession of the saw mill, caused the dam and flume to be destroyed by an improper use of it. The remaining five counts are of a similar character; and in none of them is there any allegation Avhatsoever, connecting the Avrongs Avhich they enumerate Avith the demand of the plaintiff, which is the subject of the action, nor with the contract for the delivery of the lumber. Tor aught that appears on the face of the pleadings, these acts of the plaintiff Avere mere naked trespasses, having no relation to or connection Avith the plaintiff’s cause of action, nor Avith any contract between the parties. It is an attempt in an action to recover a money demand founded on contract, to set up as the foundation of a cross complaint, a trespass committed by the plaintiff on the property of the defendant — 177 — after the commencement of the action. Such a proceeding finds no support at common law, nor under any other system with which we are acquainted, but is attempted to be maintained under Sections 38, 46, 47 and 65 of the Practice Act. We are satisfied neither of these sections, nor all of them together, afford any warrant for so anomalous and unusual a proceeding. If they .were capable of this interpretation, the result would be that in an action for slander, the defendant might file a cross complaint for assault and battery, breach of marriage contract, false imprisonment, breach of warranty or covenant, or all together. In other words, the proposition is, that in any form of action the defendant may file a cross complaint, founded on any cause of action whatsoever which he may have against the plaintiff, and that the two actions may be tried together. The result would be that a dozen separate, independent causes of action, having no relation to each other, might be tried as one cause, and it is easy to foresee the inextricable confusion and the almost endless delay which would result from such a practice. Whatever the Legislature may have intended when it authorized a cross complaint to be filed, we are quite certain it did not contemplate that in an action for a money demand, founded on contract, the defendant might file a cross complaint setting up a mere naked trespass committed by the plaintiff on the property of the defendant after the commencement of the action. The Court, therefore, erred in admitting evidence in support of any of the counts of the defendant’s cross complaint, except the first and second. In respect to these we express no opinion, the counsel having confined his argument to the other counts. But, in order to avoid any misapprehension on another trial, we are not to be understood as deciding that under proper pleadings on the part of the defendant it would not be competent for him to prove that the plaintiff violated his contract by prematurely suing out his attachment, seizing the saw mill and other property, and thereby wrongfully preventing the defendant from fulfilling — 178 — the contract for the delivery of the lumber. If the money due’to the plaintiff was to be paid in lumber, to be delivered within á specified time, and if the plaintiff, in violation of the contract, sued- out an attachment before the expiration of the time and seized the defendant’s saw mill and other property, whereby he was disabled from performing the contract, and from which he suffered other damage, we think this would constitute a valid counter claim under Section 47 of the Practice Act, the first subdivision of which defines a counter claim as “a cause of action arising out of the transaction set forth in the complaint or answer as the foundation of the plaintiff’s claim or defendant’s defense, or connected with the subject of the action. ” If the plaintiff’s demand was to be paid in lumber, and if he has violated his contract, not only in demanding payment in money, but in suing out an attachment before the expiration of the credit, and wrongfully seizing the defendant’s property, it is plain the defendant is entitled to redress, his right to which is “ connected with the subject of the action;” and it is eminently proper that the whole matter should be tried together, hi or is it material in such a case that the damage complained of accrued after the commencement of the action, and as the necessary result thereof. The action itself, and the attachment which was levied on the property, were the instruments through which the damage accrued; and it would, indeed, be extraordinary if the defendant was denied the right in the same action, not only to defend against it, but to claim redress for the wrongs inflicted upon him by the plaintiff in violating the contract, which he is unlawfully seeking to enforce, and by breaking up the defendant’s business by a premature attachment. Judgment reversed, and a new trial ordered, with leave to the defendant to amend his answer, if he shall elect to do so.