Gagne

The evidence in this case is in sharp conflict and is considered here in the light most favorable to plaintiffs. Plaintiffs had contracted to buy two unimproved lots for $8,500 “subject to ... a fill test to be made at buyer’s expense.” Plaintiff Joseph Billiet telephoned defendant that he had a contract to buy the lots but “would not proceed with the deal unless we had a test made for fill, and I told him if he would like to do it, I would like to have him handle it because he handled my work before, so he said, ‘All right, I will take care of it.’ ” Billiet testified that between 1939 and 1942 defendant told him that it was his business to test soil for fill and that he employed defendant on four different occasions for that purpose. Defendant did not tell plaintiffs at any time that he was not a geologist or soil engineer or that plaintiff should get an engineer or city inspector to check the soil. Defendant fixed the price for his services at $10 per hour, which plaintiffs agreed to pay. On March 7, 1947, several days after this telephone conversation, defendant sent two employees and a drilling rig to plaintiffs’ lots. Several holes had been drilled when Billiet arrived at…

I dissent. I would affirm the judgment on the ground that under the facts of this case the detriment suffered by the plaintiffs is, as stated by Mr. Justice Schauer in his dissent, “the additional amount they were compelled to expend to obtain what both plaintiffs and defendant had contemplated they should obtain.”

Respondents ’ petition for a rehearing was denied November 17, 1954. Shenk, J., and Schauer, J., were of the opinion that the petition should be granted.

The evidence in this case is in sharp conflict and is considered here in the light most favorable to plaintiffs. Plaintiffs had contracted to buy two unimproved lots for $8,500 "subject to ... a fill test to be made at buyer's expense." Plaintiff Joseph Billiet telephoned defendant that he had a contract to buy the lots but "would not proceed with the deal unless we had a test made for fill, and I told him if he would like to do it, I would like to have him handle it because he handled my work before, so he said, 'All right, I will take care of it.' " Billiet testified that between 1939 and 1942 defendant told him that it was his business to test soil for fill and that he employed defendant on four different occasions for that purpose. Defendant did not tell plaintiffs at any time that he was not a geologist or soil engineer or that plaintiff should get an engineer or city inspector to check the soil. Defendant fixed the price for his services at $10 per hour, which plaintiffs agreed to pay. On March 7, 1947, several days after this telephone conversation, defendant sent two employees and a drilling rig to plaintiffs' lots. Several holes had been drilled when Billiet…