Wood v. Longyear

This appeal is by the defendant and cross-complainant, E.

The third count in the defendants’ said answer contains their counterclaim based upon the breach by plaintiff of the express warranty referred to in the first count thereof and of the otherwise faulty and defective construction of said rock-crushing plant whereby the said defendants were unable to adequately or profitably operate the same, but, on the contrary, were put to large expense in attempted repairs thereon and to great loss and damage in its attempted operation, amounting to the net sum of $4,667, for which they seek recovery in the way of affirmative relief. By the fourth, fifth and sixth counts in the defendants’ said answer they further amplify the extent of the injury and damage which they allege themselves to have suffered from the unsuccessful operation of said rock-crushing plant due to the plaintiff’s breaches in his aforesaid warranties and to his misrepresentation as to its working capacity; the aggregate of which they allege to be the sum of $85,000, for which they seek recovery. By their separate cross-complaint the said defendants repeat substantially the averments of their foregoing answer and counterclaim and pray for substantially the same amount of recovery by way of affirmative relief. To this cross-complaint the plaintiff presented an ■answer wherein he denied the existence of any express warranty in said leasing agreement as to the capacity, of said rock-crushing plant and also denied the making of any representations as to the working capacity of said plant as

The cause came on for trial before the • court without a jury upon the issues as thus framed on November 25, 1918. At the opening of the trial, counsel, who had theretofore represented both of the defendants, suggested to the court that the defendant W. A. Boland had died in the state of Michigan on September 15, 1918, and on the basis of that suggestion objected to the further progress of the trial upon the ground that the defendants having been sued jointly and having also appeared jointly by their answer and also in and by their cross-complaint, the court had no jurisdiction to proceed with the trial until the representatives of the deceased defendant had been brought before the court. The court overruled this objection and, upon the insistence of the plaintiff, directed the trial to proceed in so far as the defendant Longyear was concerned. The trial then proceeded with the introduction of much evidence, upon the conclusion of which it was submitted to the trial court for decision. Thereafter the trial court made and filed its findings of fact and conclusions of law, wherein it found that the leasing agreement had been entered into as alleged and admitted and the premises duly delivered to the defendants thereunder, and that there remained unpaid to the plaintiff the sums due as rent therefor according to the averments of the complaint. The court further found that there had been no proof presented in support of the averments of the defendants’ answer as to any interference with or suspension in the operations of the said rock-crushing plant upon said premises by reason of the state of war existing between our government and Germany or of the conditions which prevailed in consequence thereof, and that the operation of said plant had not been suspended upon that account. The court further found that it is true that said leasing agreement contained the following words: “Together with one

[1] The first contention of the appellant to be disposed of is that urged by him at the opening of the trial of the cause and which was to the effect that his codefendant Boland having died since the issues in the case were made up and prior to the date set for the trial, the trial court had no jurisdiction to proceed with the trial until the legal representatives of his deceased codefendant had been brought before the court. This contention was predicated upon the assumption that the obligation of the defendants for the breach of which the action had been instituted was a joint obligation and the liability of the defendants thereon a joint liability, and hence that since said action had been abated as to one of said defendants by virtue of his death, it was in abeyance as to both until revived by proper proceedings against the legal representatives of the decedent. This assumption, however, fails in the light of section 16-59

“In this case the consideration for the promise inured to the benefit of Enos and Mairs equally. They purchased the whole of the land, each talcing an equal interest, and were tenants in common, and the ‘presumption,’ therefore, is, that their promise was ‘joint and several.’ It is quite true that, notwithstanding the consideration moving to each was the same, the contract might have been made a joint contract by an express statement or agreement to that effect, but in the absence of evidence showing a contrary intention, the presumption stated in said section 1659 must control.”

A like interpretation was placed upon this section of the Civil Code in Bell v. Adams, 150 Cal. 772 [ 90 Pac. 118 ], and De Angeles v. Cotta et al., 62 Cal. App. 691 [ 217 Pac. 821 ]. There being nothing in the instrument itself to overcome this presumption, it follows that the trial court was correct in holding that the obligation of these defendants was a joint and several obligation and hence that the action might have been begun and might proceed against either of them in so far as an individual remedy against either was sought, unaffected by the death or other disability of the other defendant. [2] The appellant, however, urges that since the defendants had united in their answer, counterclaims, and cross-complaint, a different situation was thus created which prevented the trial court from proceeding to hear and determine the merits of the defendants’ affirmative pleadings until the legal representatives of the appellant’s deceased codefendant had been brought before the court. [3] We are unable to perceive, however, how the defendants by uniting in their defenses' and affirmative pleas could operate to change the nature of the proceeding from a joint and several action to a joint action; but conceding section 382 of the Code of Civil Procedure to be applicable to such a situation, we incline to the view that the requirements of said section were intended solely for the benefit of the

[4] The next and, in fact, the main contention of the appellant herein is that the leasing agreement in question contains an express warranty that the rock-crushing plant upon the leased premises had a capacity of 100 tons per hour, which warranty being violated the lessees had all of the defenses and affirmative rights and remedies which are-asserted in their answer, counterclaims, and cross-complaint. The alleged express warranty as to the capacity of the said rock-crushing plant occurs in that portion of said leasing agreement which embraces the description of the premises leased and their appurtenances, and is in fact a part of said description. It is embraced in no other portion of the leasing agreement and is noticeably absent from tile particular portion thereof which purports to set forth the respective covenants, obligations, and liabilities of the lessor and lessees respectively as parties to said agreement. There is also noticeably absent from the clause in said portion of said lease which embraces the words, “Together with one rock crushing plant with a capacity-of about one hundred (100) tons per hour,” any words of express warranty or any other words evincing an intention that said phrase was inserted therein for the purpose of warranting the capacity of said rock-crushing plant. Being inserted in said instrument as an obvious portion of the description of the premises leased and their appurtenances, the natural assumption is that the phrase in question was intended merely as an identifying part of said description. This assumption might be weakened or overthrown, it is true, by the language of other portions of said leasing agreement indicating an intent on the part of the lessor to warrant the capacity of said rock-crushing contrivance, but when we look to the body of said instrument generally we find the existence of conditions

We are of the opinion that the trial court was correct in its interpretation of the foregoing phrase in said leasing agreement as constituting words of description and not of warranty. This conclusion renders unnecessary a determination of the question as to whether the phrase in question is to be interpreted as referring to a contemplated capacity in said rock-crushing plant of 100 tons per hour of crushed rock only or of crushed rock, sand, and gravel passing through said plant, although there was much evidence introduced into the record relating to this disputed interpretation.

[5] The next contention which the appellant urges is that the rock-crushing plant, the operation of which constituted the main use to which the leased premises were to be put, having become dangerous to life and limb and unsafe to operate after its delivery to and attempted operation by said lessees, they were entitled to treat said leasing agreement as terminated under the provisions of sections 1932 and 1933 of the Civil Code. This contention is predicated upon one or both of two alleged supports. The first of these is the alleged guaranty of the working capacity of said plant, but this support, as we have seen, has failed. The other support relied upon is that of the evidence showing the unsafetyness of further attempts to operate said

[6] Finally, the appellant contends that the trial court committed reversible error in overruling the said defendant’s objections to the introduction of certain evidence relating to conversations between said plaintiff and the appellant’s codefendant Boland, and also between the plaintiff and certain other persons more or less intimately associated with this particular defendant during the pendency of the negotiations preceding the making of said lease. These conversations had relation to the issue raised by the said defendant in relation to his right to rescind said leasing agreement, when he attempted so to do, and bore upon his contention and testimony that he had no knowledge of the plaintiff’s breach of his aforesaid warranty or of the defective condition of said plant prior to [July 1, 1917, when or shortly before he made his attempted rescission; but since we have herein-before held that the plaintiff committed no breach of warranty, and since the right of the defendant to rescind said agreement was properly denied by the trial court on other grounds, the error, if any, of the trial court in the admis

The judgment is affirmed.

Waste, J., Seawell, J., Myers, C. J., Lennon, J., and Lawlor, J., concurred.

Shenk, J., deeming himself disqualified, did not participate herein.