Waugenheim v. Graham

Citations

• 39 Cal. 169

Syllabus

<p>Obal Evidence to Vaby a Wbitten Conteact. — The time for the performance of a simple contract in writing may be waived, or extended, by a subsequent oral agreement.</p> <p>Idem.—Evidence uxdeb the Pleadings. — Pbactice.—When the pleadings aver a contract to be fulfilled at a specified time, and a written agreement of contract, to be fulfilled at another time, is offered in evidence, the offer is obnoxious to no objection but that of “variance;” and if this objection be not taken, and it be shown that the time of performing the written agreement had been extended by a subsequent oral agreement, so as to correspond with the pleading, all objections are thereby cured.</p> <p>New Telad.— Pbactice.—If a party unsuccessfully objects to the admission of all evidence under pleadings which show no cause of action, or for defense, the ruling of the Court below may be reviewed on an appeal from an order refusing a new trial, notwithstanding an appeal from the judgment may have been dismissed.</p> <p>Cboss Complaint.—Mere naked trespasses, having no relation to, or connection with, the plaintiff’s cause of action, nor with any contract between the parties, cannot be the foundation for a cross complaint in an action to recover a money demand founded on contract. .</p> <p>Idem. — But where the plaintiff has unjustifiably and illegally sued out a writ of attachment in the case, and thereby inflicted a great injury on the defendant, the damages arising therefrom furnish the ground for a cross complaint in the action.</p>