Fabian v. Lammers

The parties to this action were, on March 4, 1898, owners of adjoining tracts of swamp and overflowed lands in San Joaquin county. It was understood and agreed by all said parties that all of their said lands could and would be most effectually and advantageously reclaimed and protected by a system of levees which would include both the lands of plaintiff and defendant, and in consideration thereof, and for their mutual advantage and for the benefit and reclaiming of said lands of both parties, on March 4, 1898, entered into a written contract, wherein each agreed that he would at his own expense build a suitable levee on his own land on a line designated and described, connecting with levees on the other’s land so as to protect the lands of all the parties then intended to be reclaimed, and each to keep his own levee in repair. The respective levees to be completed by December 1, 1898. After this contract had been duly signed by all the parties and on June 8, 1898, the same parties in modification of the aforesaid contract of March 4th, made and entered into a further and additional written contract, so as to change certain parts and portions of the levees described in the contract of March 4, 1898, to be constructed by each of the parties thereto, so that other lands would be embraced within said reclamation, and all to be completed by December 1, 1898. This latter contract contained a clause that it should not be binding upon either party to it unless Antoinette Naglee Burke should enter into a written contract with plaintiffs granting to them and the said Lammers the right to construct said levees over her lands. Antoinette Naglee Burke did enter into such written contract with plaintiffs. The complaint alleges that defendant failed to construct a part of the levee on his land he had by said written contract agreed to construct, and thereafter the plaintiffs built and completed his said levee at a cost to them of $5,022.22, and that payment was demanded January 20, 1900. The action was brought to recover from defendant the $5,022.22 as damages sustained by plaintiffs by reason of defendant’s failure to build his levee. A general demurrer was interposed and overruled. Defendant answered, denying the allegations of the complaint and plead that ‘‘ said cause of action is barred by the provisions of section 337 of the Code of Civil Procedure, the provisions of subdivision 2 of section 388, and subdivision 1, section 339,

Appellant claims the right of action is on a new contract and a contract not in writing, a mere implied contract, and cites Chipman v. Morrill & Webster, 20 Cal. 131 , as authority. In that case the surety on a promissory note paid the note, and the court held that his right of action was not based upon the contract in the note, but upon a new contract not in writing, and his suit must be commenced within two years after he paid the note. We have examined McCarthy v. Mt. Tecarte L. & W. Co., 111 Cal. 328 , [ 43 Pac. 956 ], cited by appellant, and are unable to see any application to the question here, for the case at bar is not an action in assumpsit, or a promise merely implied by law, as that case clearly was. It is true that where one enters into a written contract for the purchase of land and pays part of the purchase price, and the contract says nothing about refunding money paid in the event of the refusal of the vendor to convey as he agreed to, an action to recover back the money paid, upon breach of the contract on the part of the vendor, is not based upon the written contract, but upon an implied contract and is governed by two years’ limitation, as held in Thomas v. Pacific Beach Co., 115 Cal. 136 , [ 46 Pac. 899 ], But this does not assist in the determination of the case before us. If the case at bar is not one founded upon contract, then it is not assumpsit founded upon an implied contract, for were it not for the contract of March 4th and June 8th, the plaintiffs would have been no more than mere volunteers in building the levee on Lammers’ land, and Lammers would have been under no obligation to pay anything. Appellant seems to ignore the fact that this is a mutual contract in which there is a consideration to each of the contracting parties. The lands of both were to be reclaimed by the construction of the levees as provided in the contract. The consideration to defendant in part was the construction by plaintiffs of their levee. Plaintiffs had paid

It is argued by appellant in his brief that the Taylor case, supra, is not in point here because the only question there was the measure of damages, and the statute of limitations was not invoked. While there was no question of that kind raised in that case, the action was for a breach of the contract and, for damages by reason thereof. It was a suit on the

Appellant argues that the contracts are part in writing and part oral, inasmuch as the dimension of the levees is not set forth therein, but is referred to the civil engineer to be determined by him. The evidence shows that defendant, on June 8th, the very day the contract was signed, knew the dimensions Atherton had fixed and then agreed to them and, in fact, defendant commenced work on his levee, and what he did was performed according to the specifications made by the civil engineer, Atherton. In support of this contention, appellant cites section 160 of Bishop on Contracts, which reads: “A contract partly in writing and partly oral is, in legal effect, an oral contract. It occurs where an incomplete writing, or one expressing only a part of what is meant, is, by oral words, rounded into the full contract; or, where there is first a written contract and afterward it is changed orally.” But how can this apply to the contracts in this case? Here the thing contracted to be done is to build a levee of sufficient height and width, to be determined by the parties to the contract or by a civil engineer. We think it sufficient that the contract was certain as to parties and their respective agreement. What defendant agreed to do is ascertained therefrom to a common certainty. No question has ever arisen, so far as the record shows, between the parties as to the particular dimensions of the levees to be built. We have carefully considered all the authorities presented by appellant upon this point, as well as all others, and are unable to hold with him as to their application.

The action is upon a written contract and was commenced within four years after the right accrued, and is, therefore,

Judgment affirmed.

Chipman, P. J., and McLaughlin, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on March 17, 1906, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 11, 1906.