Math

An opinion affirming the judgment and the order appealed from in this action was filed by this court on June 19, 1916. A rehearing was within due time granted on the petition of the appellant for the reason, as stated in the order granting the rehearing, that the petition called “attention to some evidence that seems to have been overlooked when the case was decided.” The former opinion contained the following statement of the facts and the issues' as the same are presented in the pleadings of the respective parties:

Counsel for the appellant vigorously contend in their petition for a rehearing, as likewise they argue in their briefs originally filed herein, that the only permissible conclusion from the testimony of the plaintiff himself was that the agreement upon which he relies here for a recovery does not require the defendant to pay him any compensation whatever until the money was taken from the mine " and in case of failure to take it from the mine he would get $3.50 per day, and that 'before he could claim the latter amount he would have to allege and prove some misconduct on the part of the defendant or that the mine had failed to produce the money within a reasonable time.” And it is further asserted that upon the question of what is “reasonable time,” no issue was tendered by the complaint nor evidence offered or received.

The agreement not having been reduced to writing, its terms must necessarily be learned and the intention off the parties as to its nature, scope, and effect necessarily ascertained from the evidence. We have, upon further consideration of the record, concluded that, for a reason to 'be hereafter explained, the judgment must be reversed. While it may technically be true that there is evidence in the record which supports the trial court’s conception of the agreement, as evidenced by its findings, still, on the whole, the evidence as to the nature of the agreement or upon the question of what the parties actually intended should be the precise occasion on which the plaintiff would be entitled to demand and receive pay for his services at the rate of $3.50 per day is, as the learned trial judge in his written opinion, giving his reasons for the conclusion reached, in effect declared, unsatisfactory, and it appears to us to be so much so that, since the judgment must 'be reversed, a retrial of the issues of fact should be had, in which event the facts bearing upon the transaction may, it is to be hoped, the more clearly and satisfactorily be disclosed. It will, therefore, be unnecessary for us to consider in detail the evidence in this opinion.

As to the criticism of the plaintiff’s complaint, however, it is proper that we should say that, it being alleged in the first count or cause of action therein stated that the mine “did, on or 'before the twenty-eighth day of October, 1913, produce and yield to defendant a sufficient sum of money as the proceeds thereof to pay the said plaintiff for his said ■labor at the rate of $7 per day for the period of his employment, ’ ’ it was obviously unnecessary to plead therein that the mine had failed, within a reasonable time, to produce the money with which to pay the plaintiff, assuming that it is true that the understanding between the parties was that the plaintiff was entitled to the payment of no compensation whatever until the mine did produce the money required to make such payment. Nor was it necessary to plead the matter as to “reasonable time” in the second cause of action, which was cast in the form of a common count, upon a quantum meruit. To have done so would have necessitated the pleading of the express agreement almost in its entirety—that is to say, it would have been necessary to plead not only the agreement to employ the plaintiff (which necessarily is pleaded in said count), 'but also the condition upon which he would be entitled to demand and receive his compensation. This, it seems to us, would have been inconsistent with the essential theory upon which an action on an implied contract proceeds.

The plaintiff, in his second cause of action, proceeded precisely as is required where the action is in the quantum meruit form of a common count, and in such case the defendant is entitled' to interpose any defense, which, if proved, will countervail the claim of the plaintiff that any sum is due and owing to him from the defendant as the “reasonable value” of services alleged to have been performed. In this case, either with or without pleading it, the question of “reasonable time” could have been introduced 'by the defendant as a defense to the second cause of action. In other words, the actual agreement between the parties, as the defendant understood it, could have been shown by the latter, without pleading such agreement, as a defense to the plaintiff’s claim, as set forth in said cause of action, that the defendant was indebted to him in a sum representing the reasonable value of the alleged services rendered by him to and for the defendant.

As above stated, however, it will be necessary to order a reversal of the judgment, and this for the reason that the court failed to make a finding upon a material issue.

As seen, the defendant filed a cross-complaint in which it is alleged that the plaintiff is indebted to the defendant for money loaned and for goods and merchandise furnished and delivered to the plaintiff, at the latter’s special instance and request, in the sum of $98.20. In his answer to the cross-complaint, the plaintiff denied the indebtedness so alleged.

There was some testimony supporting the above-mentioned allegation of the cross-complaint, and it was this evidence that this court said in the order granting the rehearing had been overlooked in the preparation of the former opinion.

The plaintiff himself testified that the defendant, through Mr. Oddie, its president and manager, had furnished him a bill of groceries, etc., amounting in value to the sum of $80, for which he had not paid. The court made no finding upon this issue.

It is, of course, well settled that if any material issue is left unfound, it is ground for reversal of the judgment. (Hayne on New Trial and Appeal, Rev. ed., p. 1317.)

For the reasons herein stated, both the judgment and the order are reversed and the cause remanded.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 14, 1916.