MONGERSON v. WILLIAMS

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District Court of Appeal, Fourth District, California.

MONGERSON v. WILLIAMS.

Civ. 798.

Decided: February 02, 1934

Samuel Taylor, of Bakersfield, for appellant. Jos. Barcroft, of Madera, for respondent.

This is an appeal on the judgment roll from a judgment in favor of the plaintiff in the sum of $2,333.57. Plaintiff asks us to modify the judgment and affirm it as modified. Defendant has filed no brief, but his counsel appeared at the oral argument and stated that his client desired the reversal of the judgment which had been rendered against him.

The complaint states a cause of action in the form of a common count for $4,075.06. The answer denies any indebtedness of defendant to plaintiff. Defendant filed a cross–complaint asking damages for breach of a contract to manufacture dies and parts of a bread–cutting machine. The answer to the cross–complaint denied the breach of contract, and alleged a contract whereby defendant agreed to pay plaintiff the market price for the materials used and $2 an hour for the time consumed in making dies for the machine, and 27 cents each for five thousand sets of certain parts of the machine. He alleged his performance of the contract and delivery to defendant.

The trial court found all issues in favor of plaintiff and cross–defendant, that five thousand parts were manufactured at the agreed price of 27 cents, or a total price of $1,350, and that the value of the time and materials used in cutting dies was $2,333.57. Judgment was entered for the latter amount.

The findings are responsive to the issues made by the pleadings. They show that the plaintiff is entitled to judgment in the sum of $3,683.57. The mistake in the judgment was very evidently the result of the clerical error of failing to add the $1,350 found unpaid for the parts, to the $2,333.57, found to be due for the dies.

The judgment is amended by striking therefrom the words and figures, “Two Thousand Three Hundred Thirty–three 57/100 ($2,333.57) Dollars,” and inserting in lieu thereof the following: “Three Thousand Six Hundred Eighty–three and 57/100 ($3,683.57) Dollars,” and, as so amended, is affirmed.

MARKS, Justice.

We concur: BARNARD, P. J.; JENNINGS, J.