Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-06-11
JUDGE McFARLAND'S FINDINGS
In the Case of Curtis & Clunie VS.. The
City of Sacramento.

Following are the findings of Judge Nc
Farland, of Department Two of the Su
perior Court. in the case of Curtis & Cluni
VS.. The City of Sacramento, referred to Il
Yesterdays REcoRD-UNIoN
This action having heretofore been heard
submitted and by the Court taken under ad
yisement-a jury having been waived by tn
parties-I now find the facts of the case as fol
lows:
/ The allegation of the complaint that at al
times therein mentioned the plaintiffs wer
partners doing business under the firm nam
and style of Curtis & Clunie is true. 1t is ais
plaintiffs presented their demand for the 500
mentioned in the complaint to the defendan
and its Board of Trustees; that the same was b.
said Board wholly rejected and disalloWed AM
that the whole thereof remains unpaid All ant
singular the other allegations of the complain
are untrue.
The foregoing findings of fact are all that ar,
necessary TO the determination of this action
but to facilitate an appeal, if parties SHOULD
desire to take one, find further specially, a
follows:
II. In the spring of 1876 certain actions
| brought by one HOagland and others agains
the city of Sacramento, were pending in the
District Court of the Sixth Judicial District il
| which the Hon. Greed Raymond had been EN-
ployed as attorney for defendant. In May 1876
| defendant verbally employed the plaintiffs
| herein as additional counsel in said actions
| The terms of the employment were that plain
tis were to receive 800 in cash and such further
| sum of money, at the end of the litigation as
| their services should be reasonably worth; and
| on the 18th day of said month of May, 1876, de
| PENDANT paid to plaintiffs said sum OF 500. De-
| murrerS TO the complaints in said actions had
been filed before plaintiffs were thus employed
| 1t was agreed among the litigants that the other
actions should await, and be governed by the
result in the case of Hoagland VS.. The City OF
| Sacramento. Plaintiffs assisted in arguing the
dom 1ost
| tained in the District Court. HOagland appealed
and plaintiffs assisted in the argument in the
Supreme Court. The Supreme Court affirmed
| the judgment in July, 1871, and that ended the
| entire litigation.
| on the 10th day of December, 1877, plaintiffs
presented to the Board OF Trustees of defendant,
claim of $4,000 for their said services in said
| litigation; and on the 2lth day of the same
month the said Board rejected said claim.
| III. On the Goth day of July, 1875 plaintiffs
| and defendant executed a written agreement. of
which the following is copy:
"Whereas, the city of Sacramento is indebted
to the firm of Curtis & Clunie for legal services
rendered by said firm in the several actions of
HOagland ct al. VS.. the City of Sacramento; and
whereas, the Board of Trustees of said city and
said firm differ as to the amount of said indebt-
ednesS and the settlement of said Indebtedness
if had through the Courts OF law, would incur
great additional expense upon said city there
fore, to settle said matter without recourse to
law it is agreed between the Board of Trustees
of said city representing and acting for said
city, party OF the first part, and said Curtis Il
Clunie, party of the second part, that the amount
of said Indebtedness shall be determined in the
following manner. The party OF the first part
acting through the Trustees shall select one
person, and the parties of the second part shall
select one person. The persons so selected shall
meet as soon as convenient, and after hearing
such statements rs may be made on behalf of
either party, shall determine the amount of said
Indebtedness and report the same in writing
to each of the parties hereto. In determining
the amount of Indebtedness due the parties OF
the second part from said party of the
first part, in addition 10 the value az their
services, said persons named rs aforesaid shall
take into consideration the time said in
debtednesS became due and how long it will be
before ii will be paid. Should said parties be I'M
able to agree as TO the amount of said indebted
ness, they shall select third person. and the
decision of any two of said persons shall be
binding upon the parties hereto and shall con
Stitute the decision of all, and shall be conclu-
Sive as to the amount of said Indebtedness upon
both parties The amount so agreed upon shall
be allowed by the Board of Trustees of said city
to be entered up as judgment against said CITY
final between the parties and i'll fun satisfaction
of their fees aforesaid said Judgment to be
paid within two years from the date, July ~,
THE CITY OF SACRAMENTO.
BY Jabez Turner First Trustee.
Seal. " CURTIS 4 CLUNIE.'
The foregoing is the only written acknowledge
ment, undertaking, or promise, and the only
plaintiffs introduced, or offered in evidence
" In pursuance of said argument the plain
titlS chose Ham C. Harrison as one of said ar
btratOrS: defendant chose Robert Hamilton
and these two chose Fred. Cox as the third ar
bitrItOr on the 18th day Of January 1879, the
said arbitrator made. and reported in writing
10 the parties their award, in which they found
for plaintiffs in the sum of ST 600 On or about
the sth day Of August, 1850 plaintiffs formally
notified defendant of said award and demanded
payment OF said 5000. On the 18th day ofJuly,
ISL. plaintiffs presented tothe Board OF Trustees
OF defendant claim and demand III writing,
founded upon said award for the amount there
OF, viz: 5000, and the said Board rejected the
same.
V. ON the 2Nth day Of July. 1881, plaintiffs
commenced an action against defendant in the
Superior Court of Sacramento county upon said
award to recover the 5000 mentioned therein.
The defendant answered, setting up that it
had never had hearing before said
arbitrator. and several other defenses
The case was tried, and on the DIST
day OF April. lsS2, the said Superior Court rem
dered its Judgment against plaintiffs and for de
fendant Plaintiffs appealed TO the Supreme
Court of California and on the ..... day of .....
lSS2, the Supreme Court rendered its judgment
affirming the Judgment of said superior Court.
This present action was commenced on the
2sth day of July, 1Ss2
Defendant objected to the introduction of said
written agreement for arbitration, and to the
evidence establishing the foregoing facts. on the
ground of irrelcyancy, but the Court admitted
the evidence with the understanding that its
legal effect should be considered and determined
upon the final decision of the case.
From the foregoing facts ! find the following
conclusions OF law
/ If this could be considered as an action to
recover gUQltluH HcruH on the original verbal
contract il would be barred by the statute of
limitation. The statute would commence to
run, at least, on the Zach of December lS77-the
time when defendant rejected the SO 900 claim
and the two years would expire December II.
1879. If the written agreement to arbitrat1 can
D held To SIiSDHu1 the TIuninp pf fhp at
all, 1t certainly did not suspend it beyond the
time when the award made. viz January
l., 1872; or the date when the defendant form
tTlN rejected the demand on the award, which
WAS July p, 1881 and more than year and Il
half had run before the agreement to arbitrate
was made. But this agreement to arbtrate
does not contain such an acknowledgment of a
pre-eNisting debt as Will support Il general
implied promise to pay it. When there
is Il written acknowledgment of a debt not
coupled with any promise, the law will imply a
general promise to pay but when the ac-
acknowledgement is accompanied by an express
and particular promise, the law raises no promise
other than the one thus expressly made In
such a case the acknOW ledgment is not direct
and general, bnt qualified and conditional and
if il contains any cause of action. that cause
must be based upon the contract which the in
strumeut expressly states In the case at bar.
the acknowledgment, contained in the recital
in the first part of the written agreement to
aTbitTatc, is complied with on express promise
10 do particular thing, viz: 10 pay what the
arbtratorS shall award. The instrument con
talns no other promise 20 pay. expressed or i'm
piled. The recital which is claimed to be the
acknowledgment, Is intended for the very pur-
pose OF explaining and pointing the particular
! promise which follows. Il cannot, therefore be
construed to be a " new continuing contract
| to pay upon a former obligation. II is contract
t. pay on something that was to be created in
! the future, viz the award of the arbitrator.
II. But this action is not upon the original
verbal promise There i no aYerment that
defendant promised 10 pay plaintiffs what their
services should be reasonably worth and that
they were worth $1,000 The aYerment is that
in 1875 the defendant promised in writing to paV
plaintiffs the sum of $4,000 in two years from
the 18th day Of July 1875. And the only prom
Use in writing offered in evidence is the said
agreement 10 arbitrate. But that agreement
contains no promise to pay $4,000 or any other
agreement to submit matters in controversy to
arbitrators. They awarded S. 600 and the Court
set aside the award. The written promise
proven Is not, therefore, the promise alleged.
III. l conclude therefore, that the PRAYER of
the complaint should be denied. and that de
PENDANT should have judgment for costs
Let such judgment be entered
T. Is. MCFARLAND, superior Judge
THOSE STATE LIBRARY BooKs.-A few
days ago mention was madein the RECORD
! UNION of the fact that $500 worth of books
on homeopathy had been purchased for the
State Library. Shortly afterwards it was
| intimated through one of the avenues of
the local press that the State Librarian had
| been very indiscreet in making the pur-
chase, saying that the number of works on
! that subject already on the shelves of the
/ library were sufficient. and that the money
could have been disposed of to better adj