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[Civ. No. 1860. First Appellate District.-September 14, 1916.] GEORGE HAUB, Respondent, v. H. P. COUSTETTE et al.,

Appellants.

CONTRACT–PLUMBING-ABANDONMENT BY OWNER-REMEDY.—Where a

contract to furnish and install the plumbing in a building is aban. doned by the owner before completion, the contractor is entitled to recover the reasonable value of the materials furnished and the work performed

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Bernard J. Flood, Judge.

The facts are stated in the opinion of the court.

James F. Brennan, for Appellants,

Fabius T. Finch, for Respondent.

KERRIGAN, J.-This is an appeal from a judgment in favor of the plaintiff in an action to recover for certain plumbing materials and for work and labor done and performed by the plaintiff',

Just prior to the opening of the Panama-Pacific International Exposition the defendants, owners of a lot of land near one of its principal entrances, let contracts for the erection of three small stores on their lot. One of those contracts was with the plaintiff, under the terms of which he was to furnish and install the plumbing in said building for a specified sum. Shortly after the opening of the Exposition the defendants, having probably discovered that the improvement of their property no longer promised the profitable investment they had anticipated, discontinued the construction of the stores. The plaintiff had proceeded with the performance of his contract, but certain parts of his work could not be performed until the building had progressed to a certain stage; for example, the toilets could not be installed until the floor had been laid on which they were to rest, and the sinks could not be placed in position until the wainscoting on which they were to hang was ready to receive them. The plaintiff on several occasions indicated to the defendants that

he was ready and willing to proceed with and finish his work, and the latter on at least one occasion informed him that they were going to do nothing further with the building. It is plain, according to the testimony accepted by the court, that the defendants had abandoned the construction of the stores. Under these circumstances the court was warranted in finding and deciding, as it did, that plaintiff was entitled to recover the reasonable value of the materials furnished and the work performed. The court found that the reasonable value of the work unperformed called for by the contract was $55, and directed that this amount be deducted from the contract price, and judgment for the balance was accordingly entered in plaintiff's favor.

Such judgment appears to us to be just and legal. The defendants having delayed and prevented the plaintiff from completing his contract, the latter was entitled to recover the reasonable value of the work done, (McConnell v. Corona City Water Co., 149 Cal. 60, (8 L. R. A. (N. S.) 1171, 85 Pac. 929].) In Carlson v. Sheehan, 157 Cal. 692, 696, (109 Pac. 29], the court said: “Where a person agrees to do a thing for another for a specified sum of money to be paid on full performance, he is not entitled to any part of the sum until he has himself done the thing he agreed to do, unless full performance has been delayed, prevented or excused by the act of the other party, or by operation of law, or by the act of God or the public enemy, as specified in section 1511 of the Civil Code. If performance is prevented by the party who is to make such payment, the person doing the things is entitled to payment as for full performance. (Civ. Code, sec. 1512.) And if one party breaks an intermediate covenant of an executory agreement, the other party may treat the entire contract as rescinded and recover in quantum meruit for the value of the work he has done under it. (Cox V. McLaughlin, 76 Cal. 60, [9 Am. St. Rep. 164, 18 Pac. 100).)”

The defendants contend that there is a variance in the findings on the second and third counts, but no pains have been taken to point out the asserted inconsistency, and an examination of the record fails to reveal any merit in such contention.

Judgment affirmed.
Lennon, P. J., and Richards, J., concurred.

[Civ. No. 1992. Second Appellate District.-September 14, 1916.] ANNA W. RIFFEL, Respondent, v. ARTHUR LETTS et al.,

Appellants.

ASSAULT AND UNLAWFUL IMPRISONMENT--FORCE USED BY DEFENDANT

QUESTION FOR JURY-APPEAL.-In an action for damages for an
assault and battery and for an unlawful imprisonment following an
altercation concerning the ownership of a ten-dollar bill, it is for
the jury to determine from the evidence whether or not excessive
and unnecessary force was used upon the person of the plaintiff, and
where there is evidence favorable to the plaintiff upon such issue,

the verdict of the jury is conclusive on the appellate court.
ID.-AWARD OF DAMAGES-DISCRETION-EXCESSIVE VERDICT-REVIEW ON

APPEAL.--As a general rule, what will be a proper and reasonable compensation for the damages occasioned by injuries to the person is a question committed to the sound discretion of the jury. In considering an attack upon a verdict as excessive the appellate court must treat every conflict of the evidence as resolved in favor of the respondent, and must give him the benefit of every inference that

can reasonably be drawn in support of his claim. ID.-ARREST “WITHOUT LEGAL JUSTIFICATION"--DAMAGES-INSTRUCTION.

An instruction defining an arrest, and then stating that "for a pri. vate person to take another into custody, without legal justification, and restrain him of his liberty for a time and then turn him loose without taking him before a magistrate, or to a peace officer, is unlawful, and constitutes a trespass upon the liberty of the one so restrained for which he may be compensated in damages,” is not prejudicial, for failure to adequately explain the words "without legal justification," where in other instructions, to which no objection is made, the court gives instructions showing the circumstances under which an arrest or imprisonment is legal or justifiable and also the circumstances under which an arrest or imprisonment is not legal

or justifiable. 10.-EVIDENCE—VERDICT NOT EXCESSIVE.-In an action to recover dam

ages for injuries received from an assault and battery and from an unlawful imprisonment, the complaint being in two counts, it cannot be said that a verdict in the sum of two thousand five hundred dollars is excessive, where the jury is instructed that only actual damages are recoverable, and the evidence shows that the plaintiff was an unmarried woman and in good health at the time of the alleged occur. rence, that she suffered much humiliation and distress of mind at the time and afterward, caused by being arrested and imprisoned in a caged wagon in a public street and in the presence of her neigh.

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bors, and that this caused great nervous excitement and shock, which seriously affected her health for a considerable time after the occur

rence.

'APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frederick W. Houser, Judge.

The facts are stated in the opinion of the court.

S. F. Macfarlane, and Clair S. Tappan, for Appellants.

T. C. Gould, and Shaw & Stewart, for Respondent.

CONREY, P. J.--The defendant Arthur Letts owns and operates a department store in the city of Los Angeles. The plaintiff purchased certain merchandise in his store and requested that it be delivered to her at her residence, the price to be paid on delivery. The goods were delivered by the defendant Withrow, an employee of Letts, to whom the plaintiff tendered a ten-dollar bill and received the change amounting to $8.65. While this exchange of money was going on the plaintiff suddenly remembered that she had had in her possession two ten-dollar bills; and acting under the belief that she had delivered one of them to Withrow, she attempted to withdraw the bill which she had tendered but which still remained in her hand. According to Withrow's testimony this bill was in his possession and she seized and took it out of his hand. But this is disputed by her, and as the fact is material, it must be deemed that the jury believed her testimony. Thereupon Withrow seized the plaintiff, violently pulled her from place to place in the yard near the door of her house, and finally lifted her up and carried her to the street and placed her in the wagon in a caged inclosure, the door of which he closed and fastened. After some delay and discussion, lasting for about an hour, Withrow and his assistant released the plaintiff from the wagon and went with her into her house, where the missing bill was discovered lying between the pages of a note-book on a table. As a result of the acts of the defendant Withrow, plaintiff received certain bruises upon her shoulder and left leg and suffered serious nervous shock and injury, so that she was confined to her bed for about three weeks. The imprisonment of

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plaintiff in the wagon took place in the presence of a number of neighbors of Mrs. Riffel, the attention of these persons having been attracted by the noise and violence there occurring.

The complaint in this action is in two counts, whereby she seeks to recover damages on account of the injuries received by her; seeking damages, first, for the assault and battery, and, second, as for a false and unlawful imprisonment. The case was tried to a jury, which returned a general verdict on which judgment has been entered in the sum of two thousand five hundred dollars and costs. The defendants appeal from the judgment and from an order denying their motion for a new trial.

Appellants insist that the evidence was insufficient to justify the verdict of the jury for the reasons: (1) That it was not shown that Withrow acted in an unjustifiable manner in restraining the plaintiff ; (2) that in view of the evidence the amount of damages allowed was excessive.

Force may be used by the owner to retake property from a person who has obtained possession of it by force or fraud and is overtaken while carrying it away. As much force as is necessary may be used to retain one's property which a trespasser has taken into possession and is trying to carry away. (Hodgeden v. Hubbard, 18 Vt. 506; Gyre v. Culver, 47 Barb. (N. Y.) 592; Johnson v. Perry, 56 Vt. 703, [48 Am. Rep. 826); Hopkins v. Dickson, 59 N. H. 235.) The court gave to the jury instructions correctly stating the law as to these matters. It was for the jury to determine from the evidence whether or not the bill was taken by the plaintiff by force, or taken or withheld with fraudulent intent, and whether or not excessive and unnecessary force was used by Withrow upon the person of plaintiff. As there is evidence favorable to the plaintiff upon these issues, the verdict thereon is conclusive in this court. Therefore, it must be taken as true that the plaintiff had not parted with possession of the bill, that she was acting in good faith, and that the force used by Withrow was excessive even if it had been lawful.

Next, it is claimed that the verdict was excessive in amount, As a general rule, what will be a proper and reasonable compensation for the damages occasioned by injuries to the person is a question committed to the sound discretion of the jury. In considering an attack upon a verdict as excessive

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