JUDGES: Crockett, J., delivered the opinion of the Court, Rhodes, C. J., Wallace, J., and Temple, J., concurring. Sprague, J., expressed no opinion.
OPINION
CROCKETT, Judge
The defendant's plea of the Statute of Limitations was not well pleaded. The contract, as set out in the complaint, was that the plaintiff's services were to be paid for when the patent for the ranch should be received by the parties in interest. The plea does not aver that the cause of action accrued more than two years before the commencement of the action, but only that the services contracted to be rendered by the plaintiff were rendered more than two years before action was brought. If the facts alleged in the plea were conceded to be true, they would not establish that the demand was barred by the statute.
The Court find that the plaintiff duly rendered the services specified in the complaint, but that there was no proof of their value. If this be so, the plaintiff was at least entitled to nominal damages. But proof was admitted, after objection, tending, in some degree, however remotely, to establish the value of plaintiff's services; and if the Court intended to wholly disregard it as irrelevant or incompetent, it should have stricken it out on the trial, and have afforded the plaintiff an opportunity to produce other evidence, if he desired to do so. But first to admit it as competent evidence and then to hold in the findings that there was no proof whatever of the value of the services, was well calculated to operate a surprise on the plaintiff. (Carpentier v. Small, 35 Cal. 347.)
Judgment reversed and cause remanded for a new trial.