Los Angeles daily herald., 1889-12-20

performed by them independent of the
amount agreed upon in the contract, al
though it amounts in the aggregate to
great deal more than originally con-
tracted for. And the ground of the
second cause of action set out in de-
fendant's cross-complaint is that this
failure resulted in that way. But in
order for you to find for the defendant as
to this second cause of action, you would
have to find not only that there was
promise to file the instrument for record,
that is, q promise expressed or implied,
in the manner / have heretofore de.
scribed; that the plaintiff failed to file
the instrument for record and, further,
that by that failure this consequence re-
suited and therefore for you to find from
the evidence that either one or both of
these contracts were not signed or pre-
pared for fling through any delay on the
building or the part Of the building COW
cred by that contract WAS commenced.
Then it would be immaterial, so far as
any injury resulting to defendant is con
cerned, whether or not the instrument
was fled for record at all. Therefore,
any promise that might have been made,
If from the evidence it so appears, es to
the fling OF either of these contracts
after the work embraced within such
contract had been commenced, would
be perfectly immaterial, and would not
tend ct all to impose any obligation
upon the plaintiff.
Now, as to the ownership Of the prop
erty: If you find from the evidence that
this building on Upper Main street, the
building which it is admitted has been
subjected to these liens, was built for
Mr.. Howes by the contrsctor-that the
contract was made by Mr.. Young with Mr..
Howes to build that building for him. or to
construct 1t or superintend it, and that
the building belonged to Mr.. Howes
when completed, it is not necessary for
you to 6nd or consider whether or not
the ground upon which it stood was the
property of Mr.. Howes. 1t is admitted
and there is no question but that these
liens were filed against this property ;
that the lien claimants brought their &C.
tions and enforced their liens against the
property. They obtained judgment. It
is also admitted that that judgment has
been affirmed by the Supreme Court,
and il is therefore unnecessary for the
jury to take into consideration the prob
able or possible consequence of any ver-
dict that it might render in favor of the
defendant, being supported or aided by
any reversal Of that judgment which was
obtained upon these mechanics liens.
Thatis to say, it is not necessary for you
to consider the fate of those cases at all,
it being admitted that these judgments
were obtained establishing these liens
against this property. If the defendants
fault or negligence, as described and set
out in the charge heretofore, and as
claimed in the cross-complaint, has been
the cause of the judgments being OBJ
tanned, defendant would be entitled to a
judgment against him irrespective of
whether those judgments might ulti-
mately be reversed or not. 1t will al
ways be in the power of the Court to
control any judgment it might render in
this case, to the end that the party would
get but one satisfaction.
The jury are the sole judges of the
credibility Of the Witnesses and of the
weight OF the evidence. If you find from
as you have heard it detailed on
the stand here, placing reliance upon
whom you please, and taking whose tes.
oAAAoiiy % CoutIOlAuS, bb yOu Luhy U0-
termine-you are not bound or under
any obligation at all to consider the num-
Der of witnesses that may have been
sworn one way or another, unless you
are satisfied that the weight of the evi:.
dence is with them. But if you believe
from all the evidence that the defendant
has been damaged in consequence of the
negligence of the plaintiff, either as
architect or as superintendent of con.
struction, he will be entitled to verdict
for the amount of that damage to be set
off by any sum which you may find 9th.
erwise due from defendant to plaintiff.
II, upon the other hand. you find from
the evidence under the terms of the
charge as has already been given you, that
defendant has been injured by plaintiffs
negligence in failing to file those in
struments or either of them for record,
then you will give him such verdict un.
der the second cause of action set out in
the cross complaint as you may think
him entitled to.