Opinion
Department One
Appeal from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge.
COUNSEL:
Plaintiff could not recover under the contract, but can only claim the reasonable value of the services upon a quantum meruit in assumpsit. (Cutter v. Powell, 2Smith's Lead. Cas. 1229; Bouvier's Law Dictionary, art. "Assumpsit," sec. 10; 14 Am. & Eng. Ency. of Law, 776; Castagnino v. Balletta , 82 Cal. 258.) There was no proof of value except the contract, and the court erred in admitting the contract in evidence, and in denying the motion for a nonsuit.
James Alva Watt, for Appellant.
W. W. Watson, for Respondent.
The services sued upon were of the same nature as those specified in the contract of employment, and, in the absence of a special bargain, the parties must be presumed to have continued the employment upon the same terms. (Nicholson v. Patchin , 5 Cal. 475; Wallace v. Floyd , 29 Pa. St. 184; 72 Am. Dec. 620; Ranck v. Albright , 36 Pa. St. 371; Moline Plow Co. v. Booth , 17 Ill.App. 574; McCullough Iron Co. v. Carpenter , 67 Md. 554; Grover etc. Machine Co. v. Bulkley , 48 Ill. 189; Sines v. Superintendents of the Poor , 58 Mich. 503; Weise v. Board of Supervisors , 51 Wis. 564.) The contract was admissible in evidence to show value. (Friermuth v. Friermuth , 46 Cal. 42; Castagnino v. Balletta , 82 Cal. 250.)
JUDGES: Garoutte, J. Harrison, J., and Van Fleet, J., concurred.
OPINION
GAROUTTE, Judge
This is an action in assumpsit for work and services performed by plaintiff in assisting defendant in conducting and carrying on the business of an architect. Judgment went for plaintiff, and this appeal is prosecuted from such judgment, and from the order denying the motion for a new trial.
In the year 1887, the parties entered into a written contract, by the terms of which Hermann agreed to give his services "as a draughtsman and assistant architect during the necessary and reasonable working hours of each working day, for the term of three years." Hermann also agreed "to devote his whole time and services to the interest of Littlefield's business as a draughtsman and assistant architect, to use at all times his utmost reasonable exertion in and for the true and best interests of Littlefield's business, as if he were a partner with him." This agreement expired in due course of time, and plaintiff continued to remain in the employment of defendant, and performed the same character of services thereafter as before such expiration. By his answer defendant claimed that plaintiff had made a substantial default in the performance of the terms of the contract upon his part to be performed, and asked for damages. The court, by its findings of fact, declared in effect that plaintiff had performed the contract as agreed upon, and further found that during the time of his employment he performed work for persons not clients of defendant, from which employment he had received the compensation of one hundred and seventy-eight dollars; and it thereupon deducted that sum from the amount found due to plaintiff, and ordered judgment for the balance.
It is contended that the court committed an error in admitting the original written contract in evidence. We think there is no weight in the contention. The writing was clearly admissible, as showing the terms of the contract under which plaintiff performed the labor. It is elementary that when a person performing labor at an agreed price and for a stated time continues in the same employment after the expiration of the term, without a new agreement, it is presumed by the law, in the absence of anything to the contrary, that the terms of the original contract are continued; and the fact that the present action is one in the nature of assumpsit in no way deprives the plaintiff of the right to introduce the contract in evidence. This principle finds full support in Castagnino v. Balletta , 82 Cal. 250.
The findings of fact as to the performance of the contract by plaintiff are fully supported by the evidence. We see nothing in the record disclosing any substantial breach thereof. Plaintiff appears to have done some work for other parties during Sundays, holidays, and at night; but the amount of this labor was trivial, with a single exception, and in no way resulted in damage to defendant, nor in any way interfered with his business. We see no more cause of complaint by defendant in this regard than though plaintiff had passed the time so occupied in harmless amusement. The court allowed the defendant the benefit of the money received by plaintiff from this outside work. Whether or not there was justification for this action of the court is immaterial upon the present appeal, for certainly there can be no cause of complaint upon the part of defendant based thereon. A modification of the judgment in this respect could hardly be desired by him.
For the foregoing reasons the judgment and order are affirmed.