Mowry v. Starbuck

Decided July 15, 1854

California Supreme Court · decided 1854-07-15

This was an action for labor performed, laying brick for the walls of a building in the City of Stockton. The complaint stated there had been a contract, by which it was specified that the walls were to be twenty inches thick above the foundations, and that the price per thousand for laying, was to be nine dollars for the common bricks, and thirty-five dollars for the pressed bricks.

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Decided 1854-07-15

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Cited by 5 later decisions — most recently January 1957

5 state decisions

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Mr. Ch. J. Murray

¶1delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred.

¶2The time provided by the statute in which a jury shall be returned by the Sheriff, is directory, and not mandatory.

¶3It rests in the sound discretion of the Courts to allow further evidence to be introduced by either, or both parties, after the testimony has been closed. In this case, the suit having been brought on a quantum meruit for “work and labor,” it was perfectly competent to admit testimony to prove that the original contract plan had been changed, at the request of the defendant, and also the price or value of the extra work performed. It was certainly error to allow the plaintiff to read from and comment upon a paper not in evidence; but, as we can see no possible harm arising from it to the defendants in this case, we will not disturb the verdict on so technical a ground.

¶4Judgment affirmed, with costs.