Gregg

This is an action for damages and also for accrued wages sought to be recovered by reason of an alleged breach of contract. The action was tried before a jury, a verdict for plaintiff in the sum of $5,000 was returned and judgment entered accordingly. From that judgment the defendant appeals.

On July 30, 1920, at the city of Los Angeles, defendant, as the party of the first part, and plaintiff, as the party of the second part, executed a written contract as follows: “This agreement made this 30th day of July, 1920, by and between T. J. McDonald, party of the first part, and O. M. Gregg, party of the second part, witnesseth: "Whereas said first party is about to engage in the bowling-alley and poolroom business in a building to be erected for said first party for said purpose at 828 South Olive Street, in the city of Los Angeles, and it is desired that second party shall be employed by said first party in the conducting and management of said business with the view also to his buying an interest in said business and ultimately becoming a partner therein; Now, therefore, it is hereby agreed that if said building is built and if said first party shall secure a lease of same and…

I dissent. To my mind the giving of the instruction which my associates consider of a prejudicially erroneous character is not a sufficient ground for reversal. It is doubtful whether or not the instruction in question is a correct statement of the law, but if it is conceded, without admitting the legal correctness of the concession, that the instruction was erroneous, there is nothing to indicate that the error prejudiced the appellant, and therefore the judgment should be sustained.

The verdict is general in its character. Evidence contained in the record conclusively supports a recovery for the plaintiff and respondent, based upon loss of former employment, as well as loss of salary under the contract. No evidence whatever was introduced to sustain the allegation of the complaint referred to by the instruction in question and having to do with the loss of opportunity to purchase an interest in the business. This in itself furnishes strong reason to believe that the jury based its verdict upon the former rather than the latter ground. Aside from this indication there is nothing upon which even an intelligent guess might be hazarded to say for which element of damages pleaded in…