Defendant sought review after the Superior Court of Los Angeles County (California) entered a judgment in favor of plaintiff and denied defendant's motion for a new trial in a complaint for breach of contract.

Plaintiff, as assignee, filed a complaint to recover damages for the breach of an alleged contract whereby defendant, an adjoining landowner, agreed to settle and pay to a tenant certain damages to its goods, wares, and merchandise, which was caused by an excavation made by defendant adjoining and under the tenant's warehouse, and also for certain tin sold and delivered to defendant. After the tenant notified him of the potential damage, defendant agreed to stop, but failed to do so. After the floor of the warehouse collapsed, defendant agreed to pay damages, but failed to do so. The defendant sought an attorney to defend them in the case. The trial court entered judgment in favor of plaintiff. The court ordered a remittitur or a new trial if plaintiff refused to accept the remittitur. The complaint stated a claim. The warehouse would not have fallen but for the excavation. The action alleged that defendant had excavated not only on his own property, but that defendant had dug under the warehouse. There was sufficient evidence that defendant had promised to settle and pay the damage.

The court remanded the cause with instructions to modify the judgment by allowing plaintiff $ 520 instead of $ 620 if plaintiff stipulated to the remittitur within 20 days; if he failed to do so, the trial court was directed to set aside the judgment and order a new trial.