Page images
PDF

sufficient. The debtor's status being thus legally fixed, the right to recover and distribute his property and rights in action, etc., accrues to the assignee, and he may prosecute actions against and have recovery from parties, under said act, in the same manner as if personal service prior to the order adjudicating his status had heen had on the debtor. There is no error shown by the record, and the judgment and order denying a new trial should be affirmed.

We concur: SEARLs, C.; BELCHER, C. C.

BY THE CouTT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(67 Cal. 503)
O'BRIEN v. County of CoI,USA. (No. 9,609.)
Filed September 26, 1885.

MONEY VOLUNTARILY PAID-RECOVERY BACR. Money alleged to have been “illegally and erroneously” collected for licenses cannot be recovered back, if the complaint shows that the several sums sued for were voluntarily paid, and not for or on account of any property taxes assessed.

Commissioners’ decision.

Department 1. Appeal from superior court, Colusa county.

Hart & White, for appellant.

Edwin Swinford, for respondent.

Foot'E, C. This is an action against Colusa county, to recover moneys alleged to have been “illegally and erroneously” collected for licenses, paid by divers persons who, before suit, assigned their claims to the plaintiff. The several sums of money sued for, according to the allegations of the complaint, were voluntarily paid, and not for or on account of any property taxes assessed. Section 3S04, Pol. Code, which the plaintiff relied on to support his contention, does not apply to an action of this kind; and no rule of law authorizes him to recover. Harper v. Rowe, 53 Cal. 234; Loomis v. County of Los Angeles, 59 Cal. 456.

The demurrer to the complaint was properly sustained, and the judgment should be affirmed.

We concur: SEARLs, C.; BELCHER, C. C.

BY THE CourT. For the reasons given in the foregoing opinion the judgment is affirmed.

[ocr errors][merged small]

FINDINGs—EFFECT ON APPEAL WHERE EvilDENCE DOUBTFUL. Where, on appeal, there is not conflict in the evidence, but rather a question as to the correctness of the findings on the testimony introduced at the trial, and the testimony will allow of a reasonable difference of opinion as to the facts to be deduced therefrom, the judgment of the lower court will not be disturbed. Commissioners’ decision. Department 1. Appeal from superior court, Modoc county. T. F. Ewing and C. L. Claflin, for respondent. E. V. Spencer, for appellant. SEARLs, C. This is an action for the recovery of personal property, and was tried by the court without a jury. Defendant had judgment, and plaintiff prosecutes this appeal. Defendant introduced no testimony in the court below. The question presented is not one where there is a conflict of testimony, for there was no conflict, but rather a question of the correctness of the findings on the testimony introduced. The testimony of plaintiff, who was the principal witness in his own behalf, is not as full and clear on the several points to which he spoke as could be desired. Upon all the testimony presented, we should feel inclined, were the case submitted to us as an original proposition, to find that the transactions in evidence constituted a sale in praesenti, and not a contract for a sale, but some deference should be paid to the action of the court who heard the testimony, whose opportunity to arrive at a correct conclusion as to the facts was somewhat superior to our own. In this view, and regarding the case as one in which a difference of opinion may reasonably exist as to the facts to be deduced from the evidence, we are of opinion the judgment and order denying the motion for a new trial should be affirmed.

We concur: Foot'E, C.; BELCHER, C. C.

BY THE CouRT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(67 Cal. 457)
In re Estate of LUTz, Sr., Deceased. (No. 9,904.)
Filed September 24, 1885.

PROBATE PROCEEDING-APPEALABLE ORDER. No appeal lies from an order refusing to set aside and vacate a former order of distribution, and settlement of the final account of an executor. Commissioners' decision. Department 1. Appeal from superior court, Monterey county. L. S. Taylor, for respondent. S. F. Geil and D. E. Alexander, for appellant. Foot'E, C. The only matter disclosed by the record here which this court should consider is the appeal from an order of the court below refusing to set aside and vacate a former order of distribution, and settlement of the final account of an executor. In our opinion such an order is not included in those enumerated in subdivision 2, § 963, Code Civil Proc., and the appeal should be dismissed. Blum v. Brownstone, 50 Cal. 293; Estate of Calahan, 60 Cal. 232; Estate of Dean, 62 Cal. 613.

We concur: SEARLs, C.; BELCHER, C. C.

BY THE CouRT. For the reasons given in the foregoing opinion the appeal is dismissed.

(67 Cal. 471)
SIMPsoN v. APPLEGATE. (No. 9,907.)

Filed September 24, 1885.

DJ ECTMENT—DEFENSE of TENANT AT WILL–NoTICE—QUESTION For JURY. Where, in an action of ejectment, defendant set up a tenancy at will, and alleged that no notice had been given him under the statute (Civil Code Cal. $789) regarding the termination of such tenancy, and there was a conflict of testimony as to whether such tenancy at will existed between the parties, the question as to the existence of such tenancy should have been submitted to the

jury under proper instructions, and a judgment of nonsuit was erroneous.

Commissioners' decision.

Department 2. Appeal from superior court, Placer county.

C. A. & F. P. Tuttle, for appellant.

Hale & Craig, for respondent.

Foot'E, C. A suit in ejectment for certain lands. The defense set up was an equitable title of the defendant in possession. A jury was impaneled to try the issues of fact in the case. The plaintiff and defendant, respectively, introduced their evidence, and then the defendant moved for a nonsuit, which was granted by the court, and from its judgment, and an order denying a new trial, the plaintiff appealed. The ground upon which the court rendered its judgment was that by the evidence a tenancy at will was shown in the defendant, and no notice had been given him under section 789, Civil Code. There appears to have been a conflict of testimony as to whether the defendant was or not such tenant, which question should have been submitted to the jury, under proper instructions. For this reason the judgment and order of the court below should be reversed, and the cause remanded for a new trial.

We concur: SEARLs, C.; BELCHER, C. C.

By THE Court. For the reasons given in the foregoing opinion the judgment and order are reversed, and the cause remanded for a new trial.

(67 Cal. 464)

FRIEND & TERRY LUMBER Co. v. MILLER. (No. 9,775.)
Filed September 24, 1885.

1. SALE –INTEREST, ALLEGATION OF–NoT SEPARATE CAUSE OF ACTION. Interest on goods sold and delivered does not constitute a separate cause of action, in an action for the price of such goods; and a simple statement that the given sum sued for is for interest does not render the complaint unintelligible. ambiguous, or uncertain. 2. SAME–BREACH of CoNTRACT-DAMAGES-REMOTE AND PROXIMATE CAUSE OF LOSS. In an action to recover the value of certain piles, the defendant is not entitled to show that, by reason of plaintiff's delay in furnishing such piles, he was prevented from completing the contract under which they were to be used for so long a time that he failed to realize the money on such contract that he would otherwise have received; such failure or delay on plaintiff's part being merely a remote and not a proximate cause of defendant’s loss.

Commissioners' decision.

Department 1. Appeal from superior court, Sacramento county.

Grove L. Johnson, for appellant.

Young, Young & Dunn, for respondent.

SEARLs, C. Action to recover $1,807.40, for lumber, building material, and piles sold and delivered by plaintiff to defendant. Plaintiff had a verdict for $1,087.90, upon which judgment was entered. The appeal is taken from the judgment, and from an order denying a motion for a new trial. Defendant interposed a demurrer to the complaint, which was overruled. The demurrer was properly overruled.

The pleading, after averring the indebtedness of defendant in the sum of $1,578.97, on account of certain lumber, building material, etc., sold and delivered to defendant by plaintiff between October, 1880, and August, 1882, proceeds to aver that defendant is further indebted in the sum of $228.43, on account of interest to August 1, 1882, due on said sum. The interest was but an incident of the principal thing, the debt due to plaintiff. It did not constitute, and was not treated in the complaint as forming, a separate cause of action. The simple statement, in concise language, that a given sum was due for interest up to a given date on the principal sum did not render the complaint ambiguous, unintelligible, and uncertain in any respect.

At the trial defendant introduced testimony tending to show that he contracted with plaintiff for certain piles and lumber, to be used in pursuance of a contract with the drainage commissioners, which he had agreed to finish within a given time, all of which was known to plaintiff, who agreed to furnish the same when required. Defendant then offered to prove that plaintiff failed to furnish the piles in time, whereby he was delayed in the completion of his contract, and failed to realize the money therefor which, but for such delay, he would have received from the state through the drainage commission. The testimony was offered in various forms, but all tending to the same end, viz., to show that by the delay of plaintiff defendant was prevented from completing his contract for so long a time that he did not receive his pay from the state, was compelled to borrow money to carry on the “work that the piles were to be used in,” etc.

It was objected to this evidence that it was irrelevant, immaterial, and incompetent; that the damages sought to be proven were too remote; that the act under which defendant was acting was invalid, etc. The objections were sustained, and this action of the court is assigned as error. The damages sought to be proven were not the proximate result of plaintiff's violation of its contract. Section 3300 of the Civil Code provides that—

“For the breach of an obligation arising from contract, the measure of dam ages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.”

Rules prescribing the measure of damages, based upon such principles of justice and equity as shall be uniform, definite, and exact, are not readily formulated. We know of no branch of the law in which greater conflicts and contradictions exist than are to be found in the adjudicated cases on this subject. The most that has been or that can be done is to formulate such arbitrary rules as, the subject to which they are applied considered, will, in the great majority of cases, afford such measure of indemnity as the ends of justice will warrant. Complete indemnity, in its broadest sense, cannot and ought not in all cases to be obtained. To illustrate: the measure of damages on a breach of an ordinary contract for the payment of money is the amount agreed to be paid, with interest. It will frequently occur that the payment of principal and interest may fall far short of indemnity. The creditor, from the want of the money, may have suffered in his credit, or become bankrupt and lost his fortune. Complete indemnity would require compensation for all such losses. But to adopt and enforce such a rule would tend to drive all but the reckless and impecunious from all business transactions involving monetary obligations.

For reasons which, on reflection, become very apparent, the measure of damages for the “breach of a contract,” as it is usually termed,

« PreviousContinue »