defendant certain goods, wares, and merchandise, and performed work and labor in connection therewith, at defendant's request, all of which were of the reasonable value of, and at the agreed price of, $35,744.35, which said sum defendant promised and agreed to pay therefor, but that he has refused and failed to pay said sum, or any part thereof, except the sum of $31,177.80." The prayer of the complaint is for a judgment against defendant for the sum of $4,566.55, with interest thereon from June 13, 1890. The answer of the defendant joined issue with the allegation of the complaint as to the value and agreed price of the goods sold, and work and services performed, alleging that the whole value thereof and price agreed to be paid therefor did not exceed $30.000, and further alleged that plaintiff had been fully paid. The plaintiff recovered judgment in the superior court for the sum of $788.54, with interest thereon from the date of the commencement of the action until the rendition of the judgment, amounting in all to $892.85 and costs. The defendant appeals.

1. The order made by the court without the consent of the parties, referring the cause to a referee "to state an account between the parties, and report a judgment and findings in said cause," which was, in effect, a reference of the whole case for trial, was not authorized by section 639 of the Code of Civil Procedure. The action is an ordinary action at law for the recovery of an alleged indebtedness, and in such cases the court should not make a reference for the trial of all the issues therein, except upon agreement of the parties. Seaman v. Mariani, 1 Cal. 336; Grim v. Norris, 19 Cal. 140. But the defendant did not reserve any exception to the order of reference, and,

not having done so, cannot now insist upon the error of the court in making the order

as a ground for the reversal of the judgment.

The value of the goods and merchandise sold, and work and services performed, by plaintiff, or the price agreed to be paid therefor, was a material issue in the case, and the plaintiff is not entitled to recover in this action unless such agreed price or value exceeds the amount admitted by the pleadings to have been paid by defendant on account thereof, and the finding of the court is that such agreed price or value is less than the amount of such admitted payments. The further finding of the court, that defendant has only paid $26,068.81 on account of the matters alleged in the complaint as constituting plaintiff's cause of action, must be disregarded, because such finding is contrary to the admission contained in the pleadings. The plaintiff alleges in the complaint that defendant has paid to it $31,177.80 on account of the matters alleged in the complaint, and that fact, not being denied in the answer, is conclusive. White v. Douglass, 71 Cal. 115, 11 Pac. Rep. 860; Hill v. Den, 54 Cal. 6. But the plaintiff contends that the action is simply one to recover the balance of an account, and that the allegation as to the debit and credit sides of the account is not material. Unquestionably, it is not necessary that there should be such particularity in the statement of a cause of action to recover the general balance alleged to be due upon an account as is found in the complaint here. does not follow that such particular allegations, when made, are to be treated as immaterial, and not binding upon the party alleging such facts. On the contrary, we are or the opinion that a statement such as is found in the present complaint, of the amount which defendant has paid on account of the matters therein alleged, is to be treated as and, when not put in issue by the answer, an admission of the fact by the plaintiff, effect must be given to it by the court. The judgment must be reversed, and the cause remanded, and the plaintiff should have leave to amend its complaint. Judgment reversed, and cause remanded for a new trial.

We concur:

But it

FITZGERALD, J.; McFAR

(99 Cal. 486) SHAIN v. PETERSEN. (No. 14,471.) (Supreme Court of California. Sept. 6, 1893.) REFERENCE-WAIVER OF OBJECTIONS-IRREGULARITIES IN PROCEDURE.

1. Though a court make an order of reference to take testimony without consent of the parties, which it was authorized to make only with their consent, still, they having appeared before the referee without objection, and never having objected to the order before appeal was taken to the supreme court, objection will be held to have been waived to the reference.

2. A judgment will not be reversed for mere irregularities of procedure, objected to for the first time on appeal.

Department 2. Appeal from superior court, city and county of San Francisco; F. W. Lawler, Judge.

Action by Shain against Petersen. Judg. ment for plaintiff. Defendant appeals. Affirmed.

Nagle & Nagle, for appellant. Vincent Neale, for respondent.

DE HAVEN, J. This action was brought by plaintiff, as assignee of Knowls & Co., to recover $667.17 for goods, wares, and merchandise alleged to have been sold by said Knowls & Co. to defendant. The plaintiff recovered a judgment for the full amount demanded, and from this judgment, and an order denying his motion for a new trial, the defendant appeals.

The court made an order referring the case to one W. H. Barrows "to take the proof of all material allegations in the complaint, and to report the same to the court." This order does not appear to have been made by consent, and the action was not of such a character that the court was authorized to make the order without the consent of parties. The parties, however, appeared before the referee without objection, and submitted their testimony, and no objection to such order was ever made in the superior court. Under these circumstances, the appellant must be held to have waived all objections to such reference. This court will not undertake to review the action of the trial court in making an order of reference, in the absence of an exception thereto by the party complaining of such ruling. Joshua Hendy Mach. Works v. Pacific Cable Co., 33 Pac. Rep. 1084.

The taking of testimony before the referee was concluded on April 23, 1890; and on the day following, as appears from the bill of exceptions, the court, without consent of defendant, made a further order, referring the case "to W. H. Barrows, Esq., to try all the issues in said action, both of fact and of law, and report a finding and judgment thereon to the court, with all convenient dispatch." No exception seems to have been taken to this order, and thereafter the referee made his report, in which he returned to the court all the evidence taken before him under the first order, together with his finding of facts and conclusion of law that the plaintiff was entitled to a judgment for the amount claimed by him in the complaint; and the plaintiff thereupon moved for judgment "upon all the papers on file in said action, and upon the report, findings, and decree of said referee." Upon the hearing of this motion, defendant appeared, and made specific exceptions to certain of the findings upon the ground that the same were contrary to the evidence. The motion was submitted to the court upon these exceptions. The case may therefore be considered as if it had been submitted to the court for decision upon the evidence taken before the referee, and embodied in his report. The court thereafter entered judgment for the plaintiff in ac

cordance with the referee's report. The defendant then moved for a new trial, upon which motion the findings of the referee appear to have been treated as findings of the court, and the rulings made by the referee in the admission and exclusion of evidence as rulings of the court. The motion for a new trial was denied. The trial in the court below was irregular, but for that the appellant seems to have been as much responsible as the respondent; and we do not think the judgment should be reversed because of objections to mere matters of procedure, which are urged here for the first time. Upon the issue as to the amount remaining unpaid by appellant upon the account sued upon at the date of the commencement of this action, the evidence introduced by plaintiff was somewhat vague and indefinite, but still we cannot say that the finding of the court upon this point has no evidence upon which to rest for its support. We find no error in the record, of which appellant can complain. Judgment and order affirmed.

1. In consolidated actions to establish mechanics' liens by P., a subcontractor, against the contractor and owner, and by M., a mate rial man, against P. and such contractor and owner, the complaints both alleged that P. was the subcontractor and performed the work, and that M. furnished the materials to P. These allegations were not denied. The court found that P. & Co., a copartnership, made and performed the subcontract; that M. furnished the materials; and that the contractor paid P. & Co., who in turn paid M. Held, that a judgment for defendants in the consolidated case was not erroneous, on the ground that such findings were contrary to the admissions of the pleadings, since the acceptance of payment by such firm implies P.'s consent, and must be considered as payment to him.

2. It appeared that the contractor delivered to M. certain checks, payable to the order of P. & Co., to enable him to get his pay, and that they indorsed the checks to him, but the latter applied the money to payment of other indebtedness due him from such firm. Held, that a finding that M. was paid was proper, and not inconsistent with other findings.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge. Two actions, consolidated: One by H. M. Petersen against E. R. Shain and one Drexler, to recover a personal judgment against Shain, as contractor, and to enforce a mechanic's lien for labor done and materials furnished by plaintiff as subcontractor in the construction of a building for Drexler; and the other by C. E. Mooser against H. M.

VANCLIEF, C. Action to recover money judgments, and to enforce mechanics' liens for labor done and materials furnished in constructing a brick building known as the "Drexler Building." The two actions were consolidated and tried together. Drexler was the owner of the building, Shain the original contractor, Petersen a subcontractor directly under Shain, and Mooser a subcontractor under Petersen. In the first action, Petersen seeks to recover a personal judgment against Shain for a balance of $561.70, alleged to be due the former on his subcontract with the latter, and also to enforce a lien therefor upon the building against the owner. In the second action, Mooser seeks to recover from Petersen the sum of $959.75, alleged to be due him on his subcontract with the latter, for materials furnished, and to enforce a lien therefor upon the same building. The defendants in the first action, Shain and Drexler, denied any indebtedness of the defendant Shain to the plaintiff, Petersen, and alleged full payment by Shain of all sums due Petersen on his subcontract, before Petersen filed his claim of lien. The court found the denial of Shain's indebtedness to Petersen, and the averment that such indebtedness had been fully paid, to be true, and gave judgment for defendants. In the second action, (Mooser v. Petersen, Shain, and Drexler,) Petersen did not answer, but it does not appear that his default was entered. Shain and Drexler answered, denying all alleged indebtedness, and averring payment in full for all materials alleged to have been furnished by plaintiff to Petersen to be used in the construction of said building. The court also found this answer to be true, and adjudged that the plaintiff, Mooser, "take nothing by this action as against the defendants Shain and Drexler;" that plaintiff's claim of lien is void, and is set aside; and that said defendants recover their costs. Both plaintiffs, by a joint notice, appeal from the judgments in the consolidated action, "in favor of said defendants Shain and Drexler." But Mooser, the plaintiff in the second action, has not appealed from the judgment, therein, so far as it is in favor of the defendant Petersen, to whom he furnished the materials, and against whom he prayed for a personal judgment; and point is made here upon the failure of the court to render a personal judgment against Petersen upon his default. The appeals are upon the naked judgment roll in the consolidated action, without any bill of excep

no

tions. In both cases Drexler is sued as administrator of George H. Dana, as well as personally, but his character as administrator is immaterial for any purpose of this appeal. Appellants' counsel contends that the findings are contrary to admissions of the pleadings, and, consequently, that the judgment is erroneous. It is true that it is alleged in both complaints that Petersen was the subcontractor under Shain, and performed the work, and that Mooser furnished the materials to Petersen at his request; and these allegations are not denied. The court found, however, that Petersen & Co. (a copartnership, composed of Petersen and his son) made and performed the subcontract, and that Mooser furnished the materials to Petersen & Co. The judgment, however, does not depend upon these findings, but rests solely upon the finding of payment to Petersen and Mooser. The court found that the total value of the labor and materials done and furnished under the subcontract, including the materials furnished by Mooser, was only $2,658.75. That Shain drew his checks on the Pacific Bank in favor of Petersen & Co. as follows: March 19, 1889, $400; March 23, $200; March 29, $500; April 20, $630; April 27, $60; June S, $500; June 14, $500. That the last two checks, each for $500, were delivered by Shain to Mooser to enable him to obtain payment from Petersen & Co. for the materials furnished by him, and were indorsed to him by Petersen & Co.; who credited the same to Shain on the subcontract, and that they were paid to Mooser by the bank. That the other five checks were paid to Petersen & Co., who credited them also to Shain on the subcontract. It is thus found that Shain paid to Petersen & Co. $2,790, with which sum he was credited on account of Petersen's subcontract, which called for only $2,754.55. I think the payments, thus accepted and credited by Petersen & Co. as payments on Petersen's subcontract, should be considered as payments to Petersen on that contract, since such acceptance and credit implies Petersen's consent. Indeed, he expressly admits in his complaint that he had been paid $2,192.85, which necessarily included payment for a large portion of the materials furnished by Mooser. Can it be presumed that this payment of $2,192.85 was, in addition to the payment of $2,790 to Petersen & Co., by checks on the bank? If so, Shain had paid to Petersen and Petersen & Co. $4,982.85 on a contract which, according to the complaint, bound him to pay only $2,754.55, and, according to the finding of the court, only $2,658.75. The finding that nothing was due or owing from Shain to Petersen is at least a necessary inference from the other facts found and admitted. What was accepted and credited as payment by Petersen & Co. was necessarily so accepted and credited by Petersen.

The only point made on Mooser's appeal

is founded on the eleventh finding, to the effect that, when Mooser drew the money on the two checks drawn by Shain and indorsed by Petersen & Co., he applied the money ($1,000) to the payment of a prior debt due him from Petersen, according to an agreement between him and Petersen made on May 1, 1889, 39 days before the first of said checks was drawn, and 46 days As prior to the date of the second check. before stated, those checks were delivered to Mooser by Shain to enable him to obtain payment from Petersen & Co. for the materials furnished by him for the Drexler building. Shain, as the original contractor, was bound to clear the building of all liens for labor and materials done and furnished by his subcontractor, Petersen, and therefore was interested in having Petersen's subcontractor, Mooser, paid for all materials furnished by him. Under these circumstances, Shain, with the consent of Petersen, had a right to pay Mooser for the materials furnished by him, and to direct the application of the payment to that purpose; and the court found that Mooser was fully paid by the two checks. This ultimate fact, upon which the judgment in favor of the owner and original contractor rests, is not inconsistent with any other finding. Even the probative facts found tend to prove it. But the sufficiency of the evidence to prove it cannot be questioned on this appeal upon the judgment

roll alone.

Counsel for appellants lays some stress upon the finding that, at the time the claims of liens were filed, there remained unpaid to Shain, the original contractor, $4,188 of the original contract price, and therefore the owner would suffer no injury by being compelled to satisfy the alleged liens of the plaintiffs. This, however, would be small comfort to Shain, the original contractor, who paid Mooser for the purpose of preventing his claim of lien, and thereby enabling himself to obtain from the owner full payment of the original contract price. The case of Lumber Co. v. Neal, 91 Cal. 362, 27 Pac. Rep. 743, is not in point for appellants. I think the judgment in each of these causes should be affirmed.

architect admitted that he gave "instructions " where it to put up the pipes in that manner,' did not appear that such architect was defendant's agent when the admission was made, nor that it related to a transaction then depending.

2. It is error to admit evidence to impeach the testimony of a witness as to his statements made out of court, when the proper foundation has not been laid by calling the attention of such witness to the time and place at which it is claimed such statements were made, as required by Code Civil Proc. § 2052.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; Walter H. Levy, Judge. Action by William H. Birch against Joseph P. Hale to recover a balance due on a contract for the construction of an elevator in defendant's building. From a judgment for plaintiff, and from an order denying his motion for a new trial, defendant appeals. Reversed.

Alex. D. Keyes, for appellant. C. E. K. Royce, for respondent.

BELCHER, C. In March, 1890, Wm. H. Birch & Co. entered into a written contract with the defendant to erect for him in the building situate at the northwest corner of McAllister and Larkin streets, San Francisco, a safety hydraulic passenger elevator, and to furnish the pumps and machinery necessary to be used therewith. The contract provided that the elevator should have attached to it an air brake, which the contractors would test in a certain specified manner, and should be capable of lifting 2,000 pounds at least, and should be put in complete running order, according to the specifications. The contract fixed the price to be paid for the elevator at $4,200, and the parties verbally agreed that the price of the deep-well pump to be put in the cellar of the building should be $565. Before the work was completed, Birch & Co. assigned the contract, and all their rights under it, to the plaintiff, and he thereupon proceeded with the work, and finished it about April 1, 1891. While the elevator was being constructed, certain work was done and materials furnished by the contractors, which were not included in the contract, and are described as "extras," amounting to $158.31. Under the contract, and pursuant to its provisions, the defendant paid to the contractors sums of money aggregating $4,162, but refused to pay the balance, including the said “extras," claimed to be due. The plaintiff brought this action to recover the sum of $763.81, balance alleged to be still due and unpaid.

The answer denied that defendant was indebted to plaintiff in the sum named, or in any sum whatever, and alleged payment in full. It then set up the following defenses: (1) That the work upon the elevator and its appurtenances was done in such an unskillful and negligent manner that the defendant was obliged to make sundry repairs and alterations upon and about the same,

and was thereby damaged in the sum of $829.78; (2) that the plaintiff failed to test the air brake attached to the elevator in the manner provided for in the written contract; (3) that the elevator was guarantied to be capable of lifting a weight of 2,000 pounds, and that it was in fact only capable of lifting a weight of 1,200; (4) that Birch & Co. for a valuable consideration guarantied the materials and workmanship of the elevator and pumping machinery, and agreed to keep them in good running order for one year free of expense, but that they were so carelessly and negligently constructed that defendant was obliged to expend, and did expend, a large sum of money in altering and repairing the same; (5) that plaintiff had released the defendant from all liability to him and his assignors.

The case was tried in the court below without a jury, and judgment was rendered in favor of the plaintiff for the amount demanded in his complaint. From this judgment, and an order denying his motion for a new trial, the defendant appeals.

The attorney for appellant admits in his brief "that there was a conflict of evidence on nearly every point in this case," but he says "that the appellant had a decided preponderance of the evidence, both in quality and in quantity. The trial court, however, having found against the appellant on every issue, he is not at liberty to complain that the evidence was insufficient on any point upon which there was any evidence at all." There was evidence bearing upon every material point in the case, and the only questions, therefore, which need be considered, relate to certain errors in law claimed to have been committed by the court in the admission of evidence. The water used to lift and lower the elevator, and for other purposes in the building, was pumped by the deep-well pump in the basement to a tank on the top of the building; and one of the complaints on the part of the defendant was that the pipes leading to the tank were put up in such a "crooked manner" that the pump when at work made a great noise, and caused the building to shake. The plaintiff testified that the noise was caused by the construction of the pipes, and that the pipes were put up in a crooked manner under the direction of the architect, though he said that direction was not given to him personally. He was then asked, "Did the architect admit that he had given instructions to put up the pipes in that manner?" The question was objected to by the defendant, and the objection overruled, and thereupon the witness answered, "Yes, sir." The appellant contends that this ruling was erroneous, and that it operated to his prejudice. That the evidence objected to was material is clear. The architect was the agent of appellant in supervising the construction of the building, and, if the pipes were put up in a crooked manner by his direction, v.33P.no.19-69

then appellant could not be heard to complain that by reason of this improper construction the pumping of water through them caused a disturbing noise and vibration in the building. Whether, however, they were so put up or not was a question in dispute. The architect, when subsequently called as a witness for defendant, testified that he gave no instructions to the plaintiff, or to his assignors, concerning the construction of the elevator, and denied that he ever admitted to the plaintiff that the pipes were erected under his direction in the manner in which they were erected. The admission or declaration of an agent binds his principal "only when it is made during the continuance of the agency, in regard to a transaction then pending et dum fervet opus. It is because it is a verbal act, and part of the res gestae, that it is admissible at all." Greenl. Ev. § 113. "An agent is empowered to act for the principal, but has no power to make admissions to bind him, unless these admissions constitute a part of the res ges tae." Garfield v. Water Co., 14 Cal. 38. "The admissions of an agent, not connected with the transaction to which they refer, cannot bind his principal, even though made in explanation of an act previously done by him while in the exercise of his agency. The declarations of an agent or servant do not in general bind the principal. To be admissible, they must be 'made, not only during the continuance of the agency, but in regard to a transaction depending at the very time." Beasley v. Fruit Packing Co., 92 Cal. 388, 28 Pac. Rep. 485. It does not appear that the architect was still the agent of appellant when the admission sought to be proved was made, if made at all, nor does it appear that it related to a transaction then depending, and was thus a part of the res gestae. On the contrary, the question plainly implied that it related to a past transaction. This being so, the objection should have been sustained, and the evidence excluded. Again, when the de fendant was introducing his evidence, he called as a witness one J. M. Dooley, who testified that he was the janitor of the building, and had been such since the 1st of March, 1891. On cross-examination witness was asked if he did not tell Mr. Meagher and Mr. Walter Birch that after certain repairs were made the pump ran finely. He was also asked if he did not tell Mr. Meagher at that time that the pump was working all right. Both questions were answered in the negative. In rebuttal Meagher was called by plaintiff as a witness, and testified that about the 26th of March, 1891, in Mr. Woolf's room, he had a conversation with Mr. Dooley about the noise. He was then asked, "State what the conversation was," and answered, "Mr. Dooley said that the pump was all right if it worked like that all the time." Again he was asked, "Did he say that the pump

the