Keefer

This action was brought against appellant and others to recover the price of ‘labor of a gang of Chinamen alleged to have been furnished by the plaintiff to defendants under an agreement.

The plaintiff had judgment against the defendant Keefer, alone, for thirteen hundred and thirty dollars and ninety-three cents and costs, who appeals therefrom and from an order denying his motion for a new trial.

It is contended here by counsel for appellant that, while the complaint counts upon a certain written contract to which neither of the defendants was a party, the plaintiff was permitted, against the objection of defendants, to prove and to recover upon a distinct contract between different parties.

But this contention is founded upon a misconception of the complaint in which no written agreement is alleged, the allegation being that “ an agreement was entered into between plaintiff and defendants, whereby plaintiff undertook to furnish certain Chinese laborers to work upon the construction and widening of a certain water ditch .... for which defendants agreed to pay plaintiff the sum of one dollar and ten cents per day for each laborer so furnished and employed.”

It appears that…