Legal Opinion

Whiting v. Heslep

California Supreme Court

Decided October 15, 1854PublishedCited by 2 opinions

Appeal from the Fifth Judicial District. This was an action brought by the plaintiff against the defendants, on the 13th day of February, 1854, to recover the balance of $2,500 due on a written building contract under seal, entered into with them for the erection of the Placer Hotel in the City of Sonora, and for extra work and alterations, made in the plan of the work during the progress of the building.

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Appeal from the Fifth Judicial District. This was an action brought by the plaintiff against the defendants, on the 13th day of February, 1854, to recover the balance of $2,500 due on a written building contract under seal, entered into with them for the erection of the Placer Hotel in the City of Sonora, and for extra work and alterations, made in the plan of the work during the progress of the building. The complaint also contained two indebitatus assumpsit counts, and a count on a mechanic’s lien, filed against the said building. The defendants demurred on several grounds: 1st, Because the…

1Opinion of the Court

*Mr. Justice Heydeneeldt

[330] delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

1. It is not denied that some of the counts in the declaration were good. The demurrer being to the whole declaration, was therefore good.

2. A parol agreement, varying the terms of a contract under seal, is properly enforced under the indebitatus assumpsit, when the parol agreement has been executed. (2 Cal. 584.)

3. The form of the execution of the contract made it the personal contract of the defendants, upon which they alone were liable.

Judgment affirmed.

2Cases cited1 opinion

  1. Green v. Robert Wells & Co.California Supreme Court · 1852

3Cited by2 opinions

  1. Brandt v. BrandtCalifornia Supreme Court · 1918
  2. Ferguson v. BurtUtah Supreme Court · 1880

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