DeRosier v. Vierra
| Decision Date | 15 February 1952 |
| Citation | 109 Cal.App.2d 291,240 P.2d 660 |
| Court | California Court of Appeals |
| Parties | DE ROSIER v. VIERRA. Civ. 8017. |
Goldstein, Barceloux & Goldstein, Chico, for appellant.
Hewitt & McBride, Yuba City, for respondent.
Plaintiff and respondent commenced an action against defendant and appellant, the complaint containing two counts: (1) for $1688.80 as the reasonable value of work, labor and services in the nature of land planing, scraping, ripping and surveying, at the special instance and request of defendant; and (2) upon an open book account for the same amount.
Defendant filed an answer denying the material allegations of the complaint, and also filed a cross-complaint in which he alleged that plaintiff agreed to level a 52 acre tract of land for defendant in such a good workmanlike manner that the entire tract could be irrigated by water poured thereon at a point designated by defendant previous to beginning the work; that plaintiff so negligently performed the work that defendant was unable to irrigate the land from said predesignated point; that after the work was done, defendant planted a bean corp but because of being unable to irrigate defendant was deprived of a bean crop which would have yielded 891 sacks more than were actually yielded, the sacks being worth $4.00 each, and the total profit would have been $3,564.00; that thereafter defendant planted the tract to barley, and while the barley was growing and immature, plaintiff offered to come in and level the land on condition that plaintiff be allowed to do so without delay and that defendant should, and he did, plow under the growing barley; that the plaintiff entered and so negligently performed the leveling that the defendant was unable to irrigate from the predesignated point; that as a result defendant lost 900 sacks of barley at $1.25 a sack and a total of $1125.00; that as a result of the excessive plowing, working and leveling of the land caused by plaintiff's negligence, defendant suffered damage to his land in the sum of $100.00 an acre and total of $5200.00; that by reason of defendant's being unable to irrigate he was unable to raise crops in 1948 and 1949 at a profit of $3500.00 for each of those two years, and therefore he was damaged in the sum of $7000.00. Defendant prayed judgment for $16,889.00 upon his cross-complaint.
Plaintiff denied all of the material allegations of the cross-complaint, and, following a trial before the court without a jury, the court found that the allegations of the complaint were true and those of the cross-complaint were untrue. Judgment was entered for plaintiff in the sum of $1688.80, interest and costs, as prayed for in the complaint. Defendant's motion for a new trial was denied, and defendant has appealed from the judgment.
Appellant bases his argument for a reversal of the judgment upon the following points: (1) There is no substantial evidence from which an implied promise to pay for the work done in May and June, 1949, may be deduced; and (2) The work done in May and June, 1949, was itself materially defective, there being no substantial evidence to the contrary, and therefore defendant did not become bound to pay the reasonable value thereof.
It is a rule too well established to require the citation of authorities that before an appellate tribunal is justified in reversing a judgment upon the ground of the insufficiency of the evidence, it must appear from the record that, accepting the full force of the evidence adduced, together with every inference favorable to the prevailing party which may reasonably be drawn therefrom, it still appears that the law precludes the prevailing party from recovering a judgment. The evidence must be construed most strongly against the losing party. Every favorable inference and presumption which may fairly be deduced from the evidence should be resolved in favor of the prevailing party. The prevailing party's evidence must ordinarily be accepted as true, and evidence which is contradictory to it must be disregarded.
Bearing in mind this familiar rule, which, we are constrained to state, is too often disregarded by counsel who insist...
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McCaffrey v. Cronin
...on the part of the party receiving the benefits to pay the reasonable value. The principle was thus stated in DeRosier v. Vierra, 109 Cal.App.2d 291, 294, 240 P.2d 660, 662: "When services are rendered by one person, from which another derives a benefit, although there is no express contrac......
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Kuehn v. Lowthian
...the verdict. Huston v. Schohr, 63 Cal.App.2d 267, 146 P.2d 730; Freeman v. Nickerson, 77 Cal.App.2d 40, 174 P.2d 688; De Rosier v. Vierra, 109 Cal.App.2d 291, 240 P.2d 660; Dodds v. Stellar, 77 Cal.App.2d 411, 175 P.2d 607. If this point is now sound it should have been raised by a motion f......