Opinion
Rehearing Granted 14 Cal. 247 at 249.
Appeal from the Fourth District Court.
COUNSEL:
J. B. Hart, for Appellant, cited: Ritter v. Stevenson , 11 Cal.; Gunter v. Laffan , 7 Id. 588.
Shattuck, Spencer & Reichert, for Respondents, cited: Stearnes v. Aguirre , 7 Cal. 443; Phelan v. Supervisors , 8 Id. 15, to the point, that judgment of reversal, by the Supreme Court, does not preclude a trial, de novo, or further proofs.
Upon the merits they argued: that plaintiffs were entitled to nineteen hundred and nineteen dollars, as extra work, on the ground, that it was provided for in the contract between Howard, and Wilber, and Dawes; and that Ritter, the mortgagee, assented to it; and that this claim for extra work was not adjudicated in the opinion in 7 Cal. 576, because, there was nothing in the record upon that question.
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
BALDWIN, Judge
On petition for rehearing, Baldwin, J. delivered the opinion of the Court--Field, C. J. concurring.
After the oral arguments and written briefs, we adhere, in substance, to the conclusion to which we came in our former opinion. The judgment of this Court in this case, (reported in 7 Cal. 567,) settled the equities of these parties as to the matters passed upon by that judgment. There appears to have been no express assent to, but on the contrary a protest against, the opening of the cause anew, and a new trial of the law and facts adjudicated heretofore in this Court. Whether that judgment be correct or not, it is now res adjudicata .
But we do not find that the former judgment embraced the nineteen hundred dollars charged as extra work, but only the mechanic's lien and the mortgage, independently of this charge. If the Contractors did the work, with the knowledge of Ritter, and after Ritter's mortgage, and Ritter interposed no objection, then we think, under the contract between Howard, and Wilber, and Dawes, it would, in equity, be a charge upon the mortgaged property. Otherwise, it would not. It would be a very dangerous doctrine to hold, that a Contractor might make a vague general agreement providing for additions to the work specified in the contract at the will of the owner of the building, and thus give to these parties, after a sale or mortgage of the former owner, a right to encumber the property to any extent after such sale or mortgage. The mortgaged property might be rendered wholly valueless to the mortgagee by holding a right to enter into such contract, in pursuance of a vague general provision of this sort, after the property had changed hands or was mortgaged.
Judgment reversed and cause remanded, for the purpose of determining this sole question according to the principles of this opinion.
Ordered accordingly.
CONCUR
COPE
Cope, J. I concur in the judgment.