No. 2,425.

#### CHANCELLOR HARTSON, Appellant, *v.*R. S. HARDIN, Respondent.

Pleading. — Statute oe Limitations. — In an action for the value of services rendered, a plea which does not aver that the *cause of action*accrued more than two years before the commencement of the action, but only that the services contracted to be rendered by the plaintiff were rendered more than two years before action brought, is insufficient as a plea of the Statute of Limitations.

Peaotioe. — Finding.—Subpbise.—where evidence tending in some degree to establish the value of plaintiffs services was admitted as competent after objection, the finding that there was no proof of the value of the services ivas calculated to operate a surprise on the plaintiff, and was therefore erroneous.

Appeal from the District Court of the Seventh District, Napa County.

The complaint sets forth, that plaintiff, who is an attorney at law by profession, was employed by defendant in October, 1861, to apply for and procure a patent for a certain rancho in Napa County, in which defendant claimed under Julian Pope, deceased, an undivided one fifth interest, and to induce certain settlers or squatters residing upon portions thereof to remove therefrom, or otherwise to relieve *265the premises of their possession or adverse claims, defendant undertaking, upon the receipt of the patent and the relief of the premises from,said squatters, to pay plaintiff so much as said services for defendant should be reasonably worth ; that in pursuance of said agreement plaintiff took the necessary steps to procure the said patent, and in due time procured the issuance thereof, and the same was duly received by the heirs and patentees, on or about the 21st day of October, 1864 ; that before, the day last aforesaid plaintiff had relieved the said rancho from all the squatters, who had been in possession adversely as aforesaid ; and that the services so rendered by plaintiff were reasonably worth the sum of eight hundred dollars, which the defendant became liable to pay on the said 21st day of October, 1864,

Defendant, in his answer, denied the allegations in the complaint, and alleged that the services-were all done and performed, if at all, more than two years prior to the institution of this suit, and that all claims and demands against defendant in consequence thereof, if any, are barred by the Statute of Limitations.

The Court found that the services had been performed, and that the defendant had promised to pay for them, and rendered judgment for defendant on two grounds: First. That plaintiff’s cause of. action did not occur within two years of the filing of his complaint herein, and the same was barred by the Statute of Limitations. Second. That the services rendered by plaintiff were not proved to be of any value.

*G. Hartson*und *Thomas P. 8toney,*for Appellant.

*First*— The defendant’s plea of the Statute of Limitations was not good.

1st. The plea was hypothetical. The allegation was “that the various services alleged in plaintiff’s complaint to have been done and performed, were all done and performed, if at all, more than two years,” etc. “It is not good pleading to say ‘ if any ditch or trench was dug, it was done with*266out tbe knowledge,’ ” etc. (Van Santvoord’s Pleading, 201; *Weir*v. *Fanning,*9 How. Pr. Bep. 545.)

2d. Tbe answer did not state facts sufficient to constitute a defense under tbe Statute of Limitations. *(Shroeder*v. *Johns,*27 Cal. 279; *Table M. Co.*v. *Stranahan,*31 Id. 393; *Liclc*v. *Diaz,*30 Id. 65.)

Tbe defendant alleged that tbe services were done and performed more than two years, but failed to allege facts showing that tbe cause of action accrued more than two years before tbe commencement of tbe actiom

Tbe time when tbe services were performed was immaterial under tbe case as presented by tbe complaint, and an admission of tbe truth of tbe allegations of defendant’s plea would not have established tbe bar of tbe statute. Tbe services were in fact performed more than two years before tbe commencement of tbe action, but tbe patent was received within two years.

3d. Tbe. defendant did not establish tbe bar of tbe Statute of Limitations.

. Tbe complaint was filed September 12th, 1866, within two years of tbe time when tbe patent was received by tbe claimants. *(Quaclcenbosh*v. *Mile,*5 Barb. 469.)

*Second*— There was evidence of tbe value of plaintiff’s services, and, in consequence of tbe ruling of tbe Court admitting tbe evidence, tbe plaintiff was induced to rest bis case without further proof of tbe value of bis services. “If tbe Court makes a ruling during tbe progress of a trial, tbe party in whose favor tbe ruling is, is entitled to have tbe case decided according to tbe ruling: provided, that if tbe ruling bad been against him, be might have been able to remove tbe objection made by tbe other party.” *(Carpen-tier*v. *Small,*35 Cal. 347.)

*Wm. Wirt Pendegast,*for Bespondent, filed no brief.

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. *267was 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.