Yoakam v. Hogan

In this action for damages for breach of contract relating to exchange of properties the jury returned a verdict for the plaintiff in the sum of $5,000. A motion by defendant for a new trial upon the grounds, (1) insufficiency of the evidence to justify the verdict, (2) that the verdict is against law, and (3) errors of law occurring at the trial and excepted to by defendant, was granted. The order was general and did not specify as a ground thereof the insufficiency of the evidence to sustain the verdict. Plaintiff appeals from such order.

The parties during the month of August, 1921, agreed to an exchange of real property, consisting of a ranch in Butte County owned by plaintiff, and two parcels of improved property in the city of San Francisco belonging to defendant, one situated at the corner of Larkin and O ’Farrell Streets and the other at the comer of Waller and Stanyan Streets. The parcel last mentioned is in part designed for use as a hotel or rooming-house, and also includes flats with storerooms on the first floor of the building. Deeds were exchanged, followed by a delivery to plaintiff of possession of the parcel of San Francisco property first herein mentioned. As a part of the same transaction and supported by the same consideration an agreement in writing was

Defendant denied the allegations of the complaint with the exception of the rental value, which he admitted was the sum of $600 per month, and claimed by appropriate pleading damages due to the alleged withholding by plaintiff of possession of the ranch mentioned, the conversion by the latter of the surplus carpets, beds, etc., in the hotel, and for extra work alleged to have been performed by him in the building.

It appears from the testimony of appellant that respondent failed to furnish a substantial portion of the articles called for by the contract; that a sum exceeding $3,000 was expended by the former in the purchase thereof and in completing the alterations, and, as shown by the warehouse receipt in evidence, respondent in an attempt to deliver after the notice referred to, stored for the benefit of appellant a miscellaneous assortment of furnishings, to that extent negativing his contention of an actual and complete performance by delivery on the premises. In addition to the foregoing is the testimony of appellant mentioned above

Respondent in support of the order appealed from contends that the trial court erred in certain of its rulings and instructions, and that the verdict was contrary to the evidence. [1] As the order granting the motion for a new trial was general, and did not specify that it was granted because of the insufficiency of the evidence, it will be presumed on this appeal that the order was not based on that ground. (Code Civ. Proc., sec. 657.) We are precluded by the code provision from considering the question whether or not the evidence is sufficient to sustain the verdict, unless it is insufficient in law, and without material conflict in any material point. (Biaggi v. Ramont, 189 Cal. 675 , 677 [ 209 Pac. 892 ].)

[2] It is urged that the complaint fails to state a cause of action and is insufficient to support a verdict for damages growing out of delay in performance. The question of the insufficiency of the pleadings cannot be considered on an appeal from an order granting a new trial (Clark v. Torchiana, 19 Cal. App. 786 [ 127 Pac. 831 ]; Crescent etc. Co. v. United Upholsterers’ Union, 153 Cal. 433 [ 95 Pac. 871 ]), but it appears that plaintiff sufficiently pleaded the damages sustained by him. [3] The complaint alleged the loss of the use of the premises with the rental value thereof during the period of delay; and while a claim for damages based upon a loss of rents should be specially pleaded (Tally v. Ganahl, 151 Cal. 418 [ 90 Pac. 1049 ]), such loss is a proper element of damages when caused by delay in performance by a contractor. (Tally v. Ganahl, supra; Bird v. American Surety Co., 175 Cal. 625 [ 166 Pac. 1009 ].) The trial proceeded on the theory that the question whether the premises could have been leased for the monthly rental alleged had the contract been performed was an issue in the case, and appellant testified upon this subject without objection.

[4] It is further alleged that the court erred in permitting the appellant to testify as to the cost of procuring the articles agreed to be furnished by respondent. Evidence of cost has been held to be relevant on the question of value, and the testimony was properly admitted. (Angell v. Hopkins, 79 Cal. 181 [ 21 Pac. 729 ]; Greenebaum v. Taylor,

[5] Respondent contends that the trial court was justified in granting a new trial because it erroneously permitted evidence of an offer of compromise to go before the jury. A witness for respondent was asked on cross-examination if he had not stated to appellant that he would advise respondent to pay a sum mentioned in settlement of the controversy, and whether the witness had not himself offered such sum to appellant for the same purpose. The witness answered the last question in the negative, but in response to the first stated that though he had endeavored to effect a settlement, no amount was mentioned by him, but that appellant had suggested the sum of $4,850 as the amount he would be willing to accept, and that the suggestion was submitted to the respondent and rejected. This testimony was admitted without objection. The respondent asked that the answers be stricken out. The court denied the motion, but instructed the jury “that anything in the nature of a compromise shall not in any way interfere with your right to arrive at a verdict as to the damages in the case.” While the questions may have been proper as cross-examination, if it can be said that the answers tended to show an offer on the part of the defendant to compromise, the evidence would be as incompetent as if adduced directly by the appellant. The question is whether the answer, permitted to go to the jury, justified the implied conclusion of the trial court that an error was committed which resulted in a miscarriage of justice. We do not see how it could. The testimony of the witness did not show any offer on the part of the defendant to allow judgment to be taken against him, or to compromise the claim, but, on the contrary, the testimony was that the defendant rejected the purported offer made by the plaintiff. But assuming that the testimony may have left an impression that the respondent was seeking to compromise his differences with the appellant, and that the instruction

[6] Respondent complains that the court erred in instructing the jury that if it found that respondent failed without fault on the part of appellant to perform the agreement within the time limited by the contract it would be its duty to ascertain the damage, if any, suffered by the latter, and to determine the amount which would compensate him for all detriment proximately caused by such failure, in that the instruction ignores respondent’s defenses that no demand for performance was made, that the delay was caused by extra work done at the instance of appellant and the latter’s indecision as to whether the building should be altered for use as a hotel or apartment house. While these matters were not pleaded as a waiver of performance or as an excuse for delay (Herdal v. Sheehy, 173 Cal. 163 [ 159 Pac. 422 ]; Estate of Warner, 158 Cal. 441 [ 111 Pac. 352 ]), the answer consisting of denials, and affirmative allegations of full performance, there is evidence in the record tending to show an interference by appellant with the conduct of the work on the building; and the court instructed the jury that if it found that the delay was caused by the fault of appellant, or that the latter prevented performance, he could not recover. These instructions fully covered the defenses based upon the evidence mentioned, a demand for performance not being a condition precedent to appellant’s right to sue. (O’Connor v. Dingley, 26 Cal. 11 ; Marshall v. Ferguson, 23 Cal. 65 .)

The order granting the new trial is reversed.

Shenk, J., Richards, J., Curtis, J., Seawell, J., Lennon, J., and Lawlor, J., concurred.