Opinion
Rehearing Denied.
Appeal from a judgment of the Superior Court of San Joaquin County and from an order denying a new trial.
COUNSEL:
George A. Nourse, and Nourse & Short, for Appellant.
Baldwin & Campbell, for Respondents.
JUDGES: In Bank. Garoutte, J. Harrison, J., Paterson, J., McFarland, J., De Haven, J., and Beatty, C. J., concurred.
OPINION
GAROUTTE, Judge
This action was brought to recover a balance alleged to be due from defendant to plaintiffs for the construction of its bank building in the city of Fresno. Plaintiffs are assignees of the contractor, and his contract was confined to the woodwork of the building. The contractor completed his work to the satisfaction of the architect, but the bank claims that it was not done within the time fixed by the terms of the contract, and by reason thereof it suffered damage in loss of rents, etc., and asks a set-off to that extent. Judgment went for the plaintiffs, a motion for a new trial was denied, and the appeal is prosecuted from the judgment and order.
The principal point upon which appellant relies for a reversal of the judgment is that by virtue of section 16, article XII. of the constitution, defendant being a corporation could not be sued in San Joaquin County, and therefore no jurisdiction was ever obtained over it. When this action was originally brought, the bank objected to the jurisdiction of the superior court of San Joaquin County to proceed in the matter, and applied to this court for a writ of prohibition based upon such alleged want of jurisdiction, asking for an order directing that court to refrain from further proceedings in the case. The application for the writ was heard in Bank and denied, and a petition for a rehearing was also denied. (83 Cal. 491.) While such decision may not, technically speaking, be the law of the case, yet it is res adjudicata as to that [32 P. 980] subject, and notwithstanding the industry and learning disclosed in the present discussion of the question by appellant's counsel, we shall treat the matter as settled and foreclosed by the former decision.
Appellant's affirmative defense is based upon the failure of the contractor to complete the building within the time agreed upon, and in this respect the court found that such failure was not due to any fault or neglect of the contractor, but was attributable entirely to the negligence of the defendant. The contractor's evidence supports this finding, and we cannot disturb it. The mere fact that the brick and iron work was finished in December, and the contractor did not complete the building until some four months after that time, is not of itself sufficient to overthrow the finding of the court that the delay was not occasioned by his fault or neglect. There was also some evidence tending to show that the contract was filed in the recorder's office prior to the commencement of the work, and no evidence to the contrary.
It is insisted that the contract set out in the complaint and introduced in evidence is incomplete in this, that the plans and specifications therein referred to are not attached and made a part thereof, and consequently the contract in its entirety was not filed for record as required by the statute. No demurrer was offered to the complaint upon this ground; the answer admitted the contract as set out in the complaint, and the contract itself was introduced in evidence without objection. It is too late to raise the question for the first time in this court. The authorities cited do not support appellant's contention in this regard. In Holland v. Wilson , 76 Cal. 434, the question arose upon a special demurrer. In Yancy v. Morton , 94 Cal. 558, it came before the court upon an objection to the evidence. Rebman v. San Gabriel Land & Water Co ., 95 Cal. 394, does not appear to be in point. The errors of law are not well taken.
Let the judgment and order be affirmed.