Bibb v. Bancroft

PATERSON, J. Plaintiffs alleged in their complaint that on the fourteenth day of May, 1886, they entered into an [152] agreement with the defendant, by the terms of which they were to remove certain debris from a lot owned by the defendant in the city and county of San Francisco, and that they were to be paid a certain price for each load of materials so removed by them. The defendant denied in his answer that any contract had been made between him and the plaintiffs. This denial raised the principal issue presented at the trial. The testimony fully sustains the allegations of the complaint. The most that can be claimed fairly by the defendant is that there is a conflict in the evidence. Under the well-established rule, therefore, this court will not interfere with the verdict or the judgment. We see no error in the rulings of the court in admitting testimony. The fact of agency, actual and ostensible, was so clearly established by the evidence, direct and indirect, that the verdict could not well have been other than it was without the testimony objected to. There was no error in the instructions of the court. Under the pleadings, it was proper for the plaintiffs to introduce any evidence tending to show an agency, either express or ostensible. That there was in Cook an express agency of some kind concerning the subject matter there can be no doubt whatever. The only question was as to its extent. The plaintiffs were not obliged under' their complaint to rely upon evidence of actual agency in Cook. Judgment and order affirmed. We concur: Works, J.; Fox, J.