Watterson v. Owens River Canal Co.

After the first trial of this action, wherein a judgment had been rendered in favor of the plaintiff, that judgment was reversed by this court. ( 25 Cal. App. 247 , [ 143 Pac. 90 ].) On the second trial the court granted defendant’s motion for a nonsuit, and judgment was entered in favor of the defendant. From this judgment the plaintiff now appeals.

The complaint upon which the case was first tried was framed to state a cause of action for the foreclosure of a

The answer of the defendant to that complaint contained denials covering the principal allegations of the complaint. The answer contained a further affirmative defense showing that the original contract for the work in question was a written contract, dated November 30, 1908, made with one P. N. Snyder, under which the contract price was to be nineteen thousand dollars; that at the time of the execution of that contract the plaintiff Watterson executed to the defendant an undertaking in the sum of five thousand dollars, conditioned upon due performance of the contract by the contractor. Without making here a long statement of the case, suffice it to say that the defendant claims that when, on the sixteenth day of February, 1909, the plaintiff took charge of the work which he afterward conducted to completion, he did so on behalf of Snyder, for the purpose of preventing default on the contract and to save and keep himself harmless from the penalties provided in his bond; and that no contract relation whatever, except by reason

It was established at the former trial, and likewise at the later trial, that no written contract has ever been made between the plaintiff and the defendant; that the Snyder contract was not recorded before the commencement of the work, and that the defendant has paid the full amount of the contract price named in the Snyder contract.

Upon the evidence shown by the record before us on the former appeal we held that the plaintiff could not successfully maintain that changes were made in the work outside of the terms of the written contract or without the consent of Watterson, and that he had not been thereby released from his liability on the bond. We further held that when Snyder told Watterson to go ahead and finish the work of the contract and Watterson consented and proceeded in accordance with that request, he was-in the situation of a surety on a contractor’s bond who undertakes to finish the contract work for his principal; therefore, that he was not a person acting “at the personal instance of the owner,’’ as described in section 1183 of the Code of Civil Procedure, or entitled to any lien for the value of anything furnished or done by him. The court further said in the opinion rendered: “His right of recovery, if any, for the value of the labor and materials furnished by him, was merely the right to recover a personal judgment therefor, under like limitations as were binding upon Snyder. As Mr. Watterson succeeded and in th^t way represented the contractor, it follows that Watterson would be limited in his recovery (as in like circumstances the contractor would have been) by the contract price named in the written contract, after adjustment of all additions and deductions due to changes in the work as it progressed, and also after allowance of the proper credits for payments made by the owner. (Laidlaw v. Marye, 133 Cal. 170 , 176, [ 65 Pac. 391 ]; Condon v. Donohue, 160 Cal. 749 , 754, [ 118 Pac. 113 ].) In the trial of this action, however, this plaintiff not only attempted to assert a lien, but has obtained a decree affirming his claim without regard to the limitations above noted. With respect to the cause of action stated in- plaintiff’s complaint, his right to recover herein arid to enforce the lien claimed by him depends primarily upon the allegation and finding that on or about the six

The remittitur on the former appeal was filed with the clerk of the superior court on the first day of October, 1914. On March 13, 1915, pursuant to notice given, a motion was made by the plaintiff to file an amended complaint. The first ground of appeal argued by appellant is that the court erred in denying that motion. So far as necessary for consideration at this time, the differences between the former complaint and the proposed amended complaint are as follows: Paragraph III of the former complaint alleged that on or about the sixteenth day of February, 1909, plaintiff and defendant entered into an agreement and contract under and by which the plaintiff was to perform, furnish, and bestow certain labor in and upon the construction, alteration, addition to, and repair of said Owens River Canal, and to furnish certain materials, etc. The proposed amended complaint, in the corresponding paragraph thereof, alleges that between the fifteenth day of February, 1909, and the seventeenth day of April, 1909, at the special instance and request of the defendant, plaintiff, by and with the aid and means of a large force of men, etc., performed work and labor amounting to a stated number of days in and upon the construction, alteration, etc., of said canal. The former complaint alleged that in pursuance of said agreement and contract the plaintiff performed labor in connection with said work for a stated number of days at stated prices per day, amounting to a stated total sum; that he also furnished materials amounting to a stated sum of money in the prosecution of said work; that said contract has been fully performed on the part of the plaintiff and the same was completed and the work finished on the sixteenth day of April, 1909, and the construction, alteration, etc., of the canal was finished on the sixteenth day of April, 1909. Paragraph VI of the former complaint stated that the labor and materials so furnished were of a

The motion as presented to the court on March 13, 1915, was made upon the papers, files, and records of the court, including the decision of the district court of appeal on the former appeal and the remittitur thereon. Plaintiff now

On the twenty-fourth day of April, 1915, pursuant to notice duly given, the plaintiff moved to amend said former complaint by striking out certain portions thereof, and also moved for a jury trial of the case. This motion was granted and a jury trial was allowed. The amendment consists in striking out those portions of the former complaint which set forth the filing of a notice of claim of lien and the payment of the necesssary charge and expense for preparing and recording the same, and the prayer that said several sums claimed by the plaintiff be adjudged and decreed to be a lien upon and against the property described in the complaint. It was upon the complaint as thus amended that the action was tried a second time. It should also be noted that the proposed amended complaint which the court did not permit to be filed did not contain any reference to plaintiff’s claim of lien, and prayed only for a money judgment.

[1] 1. The court did not commit any error or abuse of discretion in refusing to allow the filing of the proposed amended complaint. As stated by counsel for appellant, the substance of his application was for leave to change his complaint from one upon an express contract to one upon an implied contract. So far as appeared to the court upon the record before it, and so far as now appears, the plaintiff has known from the beginning of this litigation all of the facts necessary to enable him to properly state his cause of action. With that knowledge, in filing his original complaint, verified by his oath, he alleged that on or about the sixteenth day of February, 1909, plaintiff and defendant entered into a contract on which he based his claim in the action. Ten months intervened between the filing of that complaint and the commencement of the first trial. An additional period of more than one year expired before

2. On closing of the case as presented by the plaintiff’s evidence defendant on various grounds moved for an order of nonsuit. This motion was granted and judgment entered -for the defendant. Appellant contends that the court erred in granting this motion. The grounds of the motion included, among others, the following: (2) That the evidence introduced by plaintiff in support of his alleged cause of action wholly fails to prove the existence or making of any contract by and between the plaintiff and this defendant, as alleged in plaintiff’s complaint and upon which his cause of action is based. (4) On the ground that the evidence shows that any money, if any was expended by T. G. Watterson, or if any work was performed in the construction of said canal, the same was furnished and performed by him as a part of the contract of November 30, 1908, in evidence.

The granting of the motion is supported by both of the reasons stated. In our decision on the former appeal we made a statement of facts with respect to the Snyder contract and specifications and the undertaking given by Watterson in connection therewith and the consideration named in the contract, and the failure to record the contract before commencement of the work, and the circumstances which led to the substitution of Watterson for Snyder as the person in actual charge of the work of construction, and the

Appellant claims that on the second trial he has produced additional evidence tending to support his allegation that at the time when he took charge of the work, to wit, on or about the sixteenth day of February, 1909, an agreement for said work was entered into between himself and the defendant. We have examined this additional evidence and are not able to agree that it strengthens the plaintiff’s case. This evidence as discussed in the briefs of counsel for appellant refers especially to certain negotiations to which one Chappelle was a party. Chappelle was not a stockholder of the defendant corporation. He was interested in certain other corporations which had business relations with defendant corporation, and in that way he was interested in the successful completion of this canal work. For that reason he advanced some of the money paid by defendant on account of the contract. On the sixteenth day of February, 1909, while the plaintiff was negotiating with Mr. Hall, a director of the defendant corporation, and with another director and with the corporation’s engineer of the work, a request was made for an advancement on the Snyder contract, of some money necessary to enable the plaintiff to go on with the work—-such money being not yet due. They found it necessary to consult with Mr. Chappelle, or report to him, concerning the situation. The plaintiff and Mr. Hall jointly prepared a telegram to Mr. Chappelle, which telegram was rewritten by the plaintiff and by him was sent to Chappelle at Pasadena, California. This telegram was signed by Teel, president of the corporation, and Kevil, the engineer. It read as follows: “Snyder requires more money present needs. Watterson assumes charge and responsibility under same. We recommend advance of two thousand dollars on account. Wire answer. ’ ’ On the next day Mr. Hall notified plaintiff that he would pay plaintiff the two thousand dollars which had been O. K. ’d by Mr. Chappelle. On the same day the plaintiff received this money and he immediately

The evidence shows that the payments made by the defendant (including certain counterclaims to which it is admitted that defendant is entitled on account of payments made to subcontractors, etc., in order to relieve the canal property from liens) exceed the sum of nineteen thousand dollars, the price named in the Snyder contract. That price was subject to increase or decrease if changes in the work were made, increasing or decreasing the cost of the work as provided by the specifications. But the plaintiff, in order to establish any increase in the contract price above the stated price of nineteen thousand dollars, must have subjected his action to that contract as the measure and test of his right to recover. This necessity he refused to recognize. In the complaint on which the case was tried, and also in the complaint which the court refused to permit him to file, plaintiff has persistently ignored the price fixed by the Snyder contract, which limits any right which he may have had to recover any judgment against the defendant, and has insisted upon a separate contract between himself and the defendant, the existence of which he has failed to prove. The plaintiff elected to stand or fall upon the proposition stated in his counsel’s reply brief: “Plaintiff has contended from the beginning, and still contends, that he never assumed to take up the work upon the canal under Snyder.”

There are many exceptions noted to rulings upon evidence. We have examined all of them. The rulings were free from any error which can be said to have prejudiced the plaintiff in his right to a full and fair presentation of his case.

The judgment is affirmed.

Shaw, J., and James, J., concurred.

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 September 22, 1919.

All the Justices concurred.