Opinion
Department Two
Appeal from a judgment of the Superior Court of Kern County and from an order denying a new trial. A. R. Conklin, Judge.
COUNSEL:
B. Brundage, for Appellants.
E. Rousseau, for Respondent.
JUDGES: Temple, J. McFarland, J., and Henshaw, J., concurred.
OPINION
TEMPLE, Judge
This is an action upon a contract whereby plaintiff agreed to construct a ditch. The defendants are associated farmers of Kern county. The complaint charges them as partners in a certain ditch under the firm name of the Whitney Creek Ditch Company. Plaintiff avers that he and defendants entered into an agreement in writing, whereby he agreed to construct the ditch, for which defendants contracted to pay one thousand dollars; that he constructed the ditch, and defendants accepted it as complete, but have not paid.
The defendants, besides their denials of plaintiff's allegations, aver that plaintiff contracted to make an open cut along a described line from Whitney creek, at a depth below the creek, and of capacity sufficient to carry all the water that Whitney creek contains at all times into the south fork of Kern river, to complete the work within two years, and to maintain such cut in such condition that it will divert and carry all the waters of the creek for two years after the completion thereof, and they charge that he has failed to perform this contract.
The only evidence of a written contract at the trial consisted of a written proposal for bids, signed by certain persons as trustees, representing themselves to be trustees of the Whitney Creek Ditch Company, and plaintiff's acceptance thereof.
The proposal for bids was as follows:
" Notice to Bidders. Whitney Creek Ditch Co.
" According to the decision of the members of the above company, bids will be received by the trustees of above company for a contract to make a cut where the tunnel now is. The cut to be made so as to convey all the water that Whitney creek contains at all times. The successful bidder to guarantee and see that all the water of said creek runs through the cut for two years from completion of the work. The successful bidder to give bonds for double the amount of his bid. Work to commence not later than June 1, 1892. Bids will be opened on November 10, 1891, in presence of the bidders by the full board of trustees. The trustees reserve the right to reject any and all bids. By order of the company.
" South Fork, September 14, 1891.
" (Signed) Wm. Scodie,
" Frank Fugitt,
" C. J. E. Taylor,
" Trustees."
In his bid plaintiff agreed to fulfill the requirements of the trustees set out in the notice inviting the same.
By the terms of this contract, as shown by the proposal for bids, plaintiff was entitled to his money when a cut was made sufficient in capacity and grade to carry all the waters of Whitney creek at all times. The guaranty that all the water shall run through the cut for two years was in the nature of a warranty. For that the company took the responsibility of the plaintiff. He was not required to wait for the two years, and then show that the ditch had carried all the water at all times, to enable him to recover.
This view shows that many matters over which there was much controversy at the trial were immaterial. Upon every material point there was a conflict of evidence, and, whether the verdict was in accordance with the preponderance of testimony or not, we cannot say that it was unsupported by testimony.
Plaintiff contended that he had fully performed his contract, and was on that ground entitled to his pay. He also contended that the defendants had accepted the ditch as completed. This was not, as contended by counsel for defendants, a claim that the contract had been varied, but that the defendants had accepted the work, and thereby agreed that it had been done in all respects as required; or, if it had not been fully performed, that further performance was waived. It was competent for the parties to accept the work done and to bind themselves to pay for it, although the contract had not been fully performed. If this is an alteration of the contract, it was at once an executed agreement. I do not, therefore, deem the refusal to give the instruction asked by defendants upon the subject of the verbal alterations of written contracts injurious, even if the instructions were not substantially given elsewhere by the court.
The instruction in regard to the levy of an assessment is of doubtful import, but [48 P. 487] seems to tell the jury that it is for them to determine whether the levy of an assessment of one thousand dollars was an alteration of the contract to the extent that it constituted an acceptance of the work. This was doubly erroneous. The so-called levy of an assessment could not of itself constitute an acceptance of the work, and, if it did, it would do so as a matter of law, and its effect would be for the court to declare. I do not find in the record any evidence whatever of an acceptance of the work. An agreement to pay the workmen, while denying that the contract has been performed, and claiming that nothing is due plaintiff, would not constitute such acceptance. For this reason, also, the instruction was erroneous. Quite likely the verdict was based upon this proposition.
For these reasons the judgment is reversed and the cause remanded.