McDonald v. Poole

Searls, C. C.This action was brought to recover $907.50 and interest, as follows: $756.25 thereof upon a written contract entered into July 23, 1892, between James Casey and defendants, whereby the former agreed to grade, sewer, curb, macadamize, etc., Laidley street, between Pairmount and Harry streets, San Francisco; defendants agreeing to pay therefor $2.75 per foot for 275 front feet by them owned on said street. The complaint avers the assignment in writing of the contract by Casey to plaintiff on the third day of October, 1892, and the completion of the work on the twenty-second day of March, 1893, to the satisfaction of, etc. A second count of the complaint demands $151.25 for work, labor, and services performed and materials furnished to the defendants between January 1, 1892, and April 6, 1893, by said Casey, and avers the assignment of the demand therefor to plaintiff on the seventeenth day of April, 1893. The answer of defendants does not deny the making of the written contract or its assignment to plaintiff, but avers that the price to be paid was $2 per front foot, and not $2.75, as alleged by plaintiff. To the second count defendants answer, denying any indebtedness, and aver payment of $151.25, the amount claimed prior to the commencement of the action, and deny that the contract therefor was assigned to the plaintiff. They further claim by way of answer and counterclaim: 1. That defendant, John P. Poole, was employed by Casey to procure the execution of the contract for the improvements by other parties on the street, and was to receive a commission of five per cent therefor upon the aggregate proceeds of the contract, and al'So a [439] deduction of $206.25, to be deducted from the contract price upon the lands of defendants. As a further counterclaim defendants claim the sum of $787.70 as due them, as follows: $393.88, the amount agreed upon for services of defendant in procuring contract. Also, $151.25 paid to plaintiff's assignor, and being the amount specified in the second cause of action. The sum of $75.72 paid on written order of plaintiff's assignor to 0. J. Wesson, and the further sum of $318.10 cash, paid to said assignor at different times on account of the contract. The court found there was due plaintiff on account of the Avritten contract the sum of $360.75 as a balance after deducting a lumber bill of $75.75, paid by defendants, and an offset of $317.75, settled upon and agreed to by plaintiff on account of payments made by defendants to the assignor of said plaintiff. Upon the second count the court found in favor of plaintiff for $151.25, less $35 paid on account thereof, leaving a balance due of $116.25. Upon the motion for a new trial’ the court required plaintiff to deduct this sum of $116.25, and interest thereon, from his judgment, which was done. This was all that defendants were entitled to claim, and had they been allowed less, the result would have been justified by the evidence. John P. Poole, one of the defendants, testified as folIoavs: “ The aggregate amount of payments which I made him is $545.07; that includes the cash advanced at different times in the account of $315; lumber bill of $75.72, and bill of $151.25; extra work and notary’s fee of $2.50.” Deduct this aggregate of $545.07 from the sum of $907.50, the contract price of the grading, etc., and the $151.25 due for extra work, and with interest added we have substantially the sum for which the judgment now stands. The claim that there, was a verbal agreement that the work for defendants was to be performed for less than $2.75 per front foot was properly rejected, for the reason [440] that the suosequent written agreement fixing the price superseded all the previous oral negotiations. (Civ. Code, sec. 1625.) The counterclaim of defendant, John P. Poole, on account of commissions claimed for procuring the signature of other property holders to the contract, was properly denied. Conceding that it was properly proven, it was an individual demand against Casey, the assignor of plaintiff, and, as such, was not properly interposed in a joint action against the two defendants. (Code Civ. Proc., sec. 438.) No evidence or finding as to the assignment of the written contract was required, for the reason that such assignment was averred in the sworn complaint and not denied by the answer. The findings cover all the material issues. The judgment and order appealed from should be affirmed. Britt, C., and Haynes, C., concurred. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed. McFarland, J., Henshaw, J., Temple, J. Hearing in Bank denied.