Ferrea v. Chabot

Citations

• 121 Cal. 233
• 53 P. 689
• 1898 Cal. LEXIS 882

Syllabus

<p>'Trial—Waiver of Jury—Relief from Stipulation—Discretion.—As a general rule, a party should be relieved from a stipulation waiving a jury, when the same can be done without injury to either party, and without disarranging the orderly conduct of the business of the court; and such a stipulation should not be looked upon as a contract made upon a valuable consideration, which ought not to be set aside except upon proof of fraud or mistake, etc. But the court has a discretion in the matter, and its order refusing to set aside the stipulation will not be disturbed when no gross abuse of discretion appears.</p> <p>Id.—Refusal of Relief not Conclusive—Trial by Court in Another Department—Waiver.—The refusal of relief from a stipulation waiving a jury in one department of the superior court is not conclusive against an application for a jury trial in another department where the case is to be tried, especially where other reasons may be urged for avoiding the stipulation; nor is the discretion exercised by one judge in refusing relief from the stipulation conclusive against a different exercise of discretion by another judge before whom the case is tried; and if it is tried before such other judge without objection, and without any application for a jury trial before him, the right of trial by jury is finally waived, and cannot be considered as denied.</p> <p>Breach of Contract—Water Supply—Unliquidated Damages—Interest.— In an action for damages for breach of covenants in a contract to lay pipes and supply water for irrigation and domestic use, where it appears from the complaint and from the nature of the action that the damages sought to be recovered are unliquidated and uncertain, and are not capable of being made certain by calculation within the meaning of section 3287 of the Civil Code, interest thereon cannot be recovered prior to judgment under the provisions of that section.</p> <p>Id.—Construction of Contract—Lease—After-acquired Land.—A contract to supply wa