Barris

This appeal was taken from a judgment upon a verdict of $9,095.49, damages for breach of contract.

On June 27, 1929, the respondent agreed to do certain hauling for the appellant, between Black Oak and the site of the Lyons Dam, in Tuolumne County, which dam was under construction by the Pacific Gas and Electric Company. There was delay in getting the work under way, which was unsatisfactory to the respondent as it would postpone a considerable part of his hauling until the rainy season, and on September 25th his attorney wrote to the appellant voicing this grievance, as well as complaining that an alleged promise, that certain road repairing and widening would be done, was unfulfilled, threatening to cease work entirely unless a new arrangement could be made for payment on a daily rental basis and, in fact, suggesting a new rate per truck. This letter was followed by another on the 28th claiming a default for nonpayment of the installments, a subject not mentioned in the first letter. The respondent stopped work on the 25th. He had earned $1335.49 at contract rates, upon which nothing was paid and he filed the complaint herein, setting up two distinct breaches, the first based…