CHANCELLOR HARTSON, Appellant, v. R. S. HARDIN, Respondent, 40 Cal. 264

Crockett, J., delivered tbe opinion of tbe Court, Bhodes, C. J., Wallace, J., and Temple, J., concurring: Tbe defendant’s plea of tbe Statute of Limitations was not well pleaded. Tbe contract, as set out in tbe complaint. was that tbe plaintiff’s services were to be paid for when tbe patent for tbe ranch should be received by tbe parties in interest. Tbe plea does not aver that tbe cause of action accrued more than two years before tbe commencement of tbe action, but only that tbe services contracted to be rendered by tbe plaintiff were rendered more than two years before action was brought.

If tbe facts alleged in tbe plea were conceded to be true, they would not establish that tbe demand was barred by tbe statute. Tbe Court find that tbe plaintiff duly rendered tbe services specified in tbe complaint, but that there was no proof of their value. If this be so, tbe plaintiff was at least entitled to nominal damages.

But proof was admitted, after objection, tending, in some degree, however remotely, to establish tbe value of plaintiff’s services; and if tbe Court intended to wholly disregard it as irrelevant or incompetent, it should have stricken it out on tbe trial, and have afforded tbe plaintiff an opportunity to produce other evidence, if be desired to do so. But first to admit it as competent evidence and then to bold in tbe findings that there was no proof whatever of tbe value of tbe services, was well calculated to operate a surprise on tbe plaintiff. (Carpentier v.

Small, 35 Cal. 347.) Judgment reversed and cause remanded for a new trial. Sprague, J., expressed no opinion.