Opinion
Civ. No. 1257.
June 13, 1913.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George H. Cabaniss, Judge.
The facts are stated in the opinion of the court.
Page, McCutchen, Knight Olney, for Appellant.
H. W. Hutton, for Respondents.
This is an appeal by defendant from a judgment rendered in favor of plaintiffs in an action brought to recover for services performed under a written contract, consisting of laying track in the construction of a railroad; also to recover damages alleged to have been caused by defendant in delaying the performance of the work. The appeal is upon the judgment-roll.
On the eleventh day of June, 1907, the plaintiff Fairchild entered into a written agreement with the defendant, wherein Fairchild agreed to lay the first section of a certain broad gauge railroad, being approximately ten and one-half miles of track and switches, for which he was to receive $475 per mile. It was also agreed that for any work other than track-laying which might be done by Fairchild he should be paid therefor on the basis of cost plus ten per cent.
Subsequent to the date of the contract and prior to the commencement of this action Fairchild made an assignment of the contract to his coplaintiff Parkin-Howard Company, retaining, however, a one-half interest in all the profits that might accrue under the contract, and also agreeing to pay one-half of all losses that might arise in doing the work mentioned in the contract. It was alleged that the work under the contract was done by the plaintiffs jointly, and the court so found.
After finding the facts as just stated the court as a conclusion of law held that plaintiffs were entitled to judgment against the defendant for the sum of two thousand five hundred dollars, with interest thereon from the date of the commencement of the action, together with costs of suit. Judgment was accordingly entered.
Defendant contends that the findings do not support a joint judgment as entered, and will not support a several judgment in favor of either plaintiff. From the findings, it will be observed, says the defendant, that plaintiff Fairchild was entitled to only one-half of the profits, and that his coplaintiff is entitled to all the balance of the money which may be due from the defendant. That it is obvious, continues the defendant, that the whole of the recovery was not profit, and therefore there should have been a several judgment rendered declaring the amount to which each party is entitled.
It is not claimed that there was a misjoinder of parties plaintiff; and conceding, as asserted, that a several judgment should have been given and made specifying the amount to which each plaintiff was entitled under the contract and assignment, still we think, with the attorney for the plaintiffs, that this is a matter with which the defendant has no concern. The defendant does not question the amount of the award; and as the findings and judgment are satisfactory to the plaintiffs, no substantial right of the defendant is impaired, and hence he cannot be heard to complain.
Defendant also assigns as error the allowance by the trial court of interest upon the amount found due from the date of the commencement of the action. We think, however, that the court's action in this regard must be sustained. The court did not allow interest upon the whole recovery, but only upon the amount found due under the contract for laying track, and upon an item of $174.50, part of the amount found due for other work under the contract. As to the former amount, it was easily and readily ascertainable by calculation, i. e., by measuring the distance of track laid, and multiplying the number of miles by the amount per mile that the defendant agreed to pay. ( Clark v. Dutton, 69 Ill. 521; Courteney v. Standard Box Co., 16 Cal.App. 600, [ 117 P. 778]; Martyn v. Western Pacific Ry. Co., 21 Cal.App. 589, [ 132 P. 602]; Robinson v. American Fish Co., 17 Cal.App. 212, [ 119 P. 388].) We do not think that the fact that there was a dispute between the parties as to the quantity of work done had the effect of rendering plaintiffs' demand unascertainable by calculation.
As to the second item, viz., $174.50, the same principle would seem to apply. This amount became due under a provision of the contract that work done other than track laying should be compensated for by reimbursing to plaintiffs its cost, and adding ten per cent thereto. Under such a contract the defendant would undoubtedly be entitled to be informed of the precise items of cost entering into it; and being furnished with this information the amount due became readily ascertainable by calculation. Nor would the fact that the defendant denied the amount of the cost charged against it, if the court found against defendant's contention, deprive the plaintiff of the right to recover interest.
The judgment appealed from is affirmed.
Lennon, P. J., and Hall, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 11, 1913.