The evidence shows, without contradiction, that the profile was widely departed from. Indeed, the diagram exhibited, and the correctness of which as to the alignment and grade is not contradicted by any evidence, shows that where the heavy work was done the coincidences of the profile and the actual location are hardly more than the crossing of different lines. Under such circumstances, the profile was not even prima facie evidence of the work actually done. When the changes were shown, it became as irrelevant as would be the profile of a road in China or Timbuctoo. The fact that the two alignments were near each other cuts no figure. The country was hilly, the surface constantly changing. The engineer states in explanation of his secret engagement with Cox and Arnold that the change of a few feet would make a material difference in the amount of work to be done.

It is claimed that Arnold and Cox have testified as to the reasonable value. Arnold died before suit was brought upon the quantum meruit. His evidence was in regard to the conventional rates, which he said was fair compensation for the work. He did not pretend to know the work actually done, and his whole testimony shows that he estimated it from the profile. For instance, he testified as to the twenty-first mile that four fifths of the work had been done, and his mode of arriving at this conclusion was this: The mile could be completed for ten thousand dollars, and the profile rate would be fifty thousand dollars. As the location had been altered, this might be true, although but one thousand dollars of the work had been actually performed upon this mile.

Cox's testimony still more plainly refers to contract rates. He admits he did not know the amount of work actually done, and when questioned says: "We were not working by the yard." He fixed the amount due at one hundred and seventy-three thousand dollars before he commenced suit at all; and his testimony was read from the evidence

given at a former trial, when the suit was confessedly for contract rates. Evidently the plaintiffs only intended to testify to the fairness of the contract. But perhaps we may suppose they had been taught to believe that the profile afforded the best evidence of work actually performed, since they still insist upon that proposition, and their attorneys here insist in most elaborate briefs that the profiles showing work which it was agreed might not be done, and which confessedly was not done, and in a contract which expressly stipulated that compensation should not depend upon the amount of work done or materials furnished, constitutes the best evidence of work actually done and of materials actually furnished-in a suit not upon the contract, but upon a quantum meruit.

The learned judge before whom the case was tried is reputed to have based his estimate upon the evidence of defendant's witness, Stangroom, who had made a recent survey and estimate of the work, so far as he thought Stangroom's work reliable. But where, from lapse of time, he thought a present estimate could not be fairly made, he followed the profile.

If the learned judge did this, he followed the evidence where he thought it trustworthy, and where no evidence was forthcoming he followed the profile, which we have seen was entitled to no weight at all,—that is, he found without evidence. The burden was upon the plaintiff. If he were unable to establish his case by competent evidence, he was no worse off than plaintiffs often are; but this fact did not shift the burden. If he cannot prove his case he

cannot recover.

But this proposition emphasizes the argument against the propriety of allowing the amendment and the bringing in of a new cause of action after time has effaced the evidence necessary to sustain the plaintiff's present contention, or essential to enable the defendant to make a just defense.

It is emphatically a case where, having made his own bed, the plaintiff should lie in it. Having persisted in a claim for years after he was distinctly told he could not recover upon that basis, he should not now be permitted to recover upon a new theory, when time has destroyed all evidence.

Holding these views, it is not necessary to review the other points made.

[No. 11387. Department One.-May 4, 1888.]

HENRY MOLASKEY, APPELLANT, v. J. W. PEERY, RESPONDENT.

SPECIFIC PERFORMANCE-NON-PAYMENT OF PURCHASE PRICE-DF LAY.— The specific performance of a parol agreement for the sale of land refused on account of the non-payment of the purchase price, and of the great delay in the commencement of the action.

APPEAL from a judgment of the Superior Court of Santa Cruz County.

The facts are stated in the opinion of the court.

Charles B. Younger, for Appellant.

W. D. Storey, for Respondent.

MCKINSTRY, J.-This action, commenced November 14, 1883, was brought by plaintiff, as vendee, to enforce specific performance of a verbal contract for the purchase of a lot of land, made in January, 1875. The contract as found by the court was:

"That on or about January 1, 1875, plaintiff and defendant entered into a verbal agreement, whereby defendant sold and delivered to plaintiff certain lumber to build a house with, and at the same time, and as part of such verbal agreement, sold to plaintiff the lot of land described in the complaint, for the sum of twenty dollars; that the

sale of the lumber and the lot was one agreement, and defendant therein agreed that upon the payment of the sums due for the lumber (which was to be used in building a house on the lot), and the twenty dollars for the lot, that he would execute a deed for said lot, to which plaintiff assented."

The Court found further:—

"That about January 15, 1875, plaintiff entered into possession of said lot, and received said lumber under said agreement, and thereafter erected a dwelling-house on said lot with said lumber, and cleared off the said land, and made other improvements on said lot; that thereafter plaintiff paid to defendant twenty dollars as principal, and sixteen dollars as interest, on account of his indebtedness for lumber and said lot, and demanded a deed for said lot, which defendant refused, and ever since has refused, to comply with; the plaintiff's said improvements were of about the value of $120; the value of the lumber aforesaid was seventy dollars; that plaintiff resided on said land with his family until December 29, 1881; that plaintiff has not paid for said lot of land, and the sum of forty dollars was due from plaintiff to defendant on said lumber and said lot when this action was commenced."

It is contended by appellant that the evidence does not sustain the finding that he had not paid the purchase price. But the testimony of the defendant is clear and positive, and if true, the court was justified in finding as it did.

Appellant further contends that the evidence being that a payment made by him of twenty dollars was credited on the general account against him, the law will apply the payment to the charge first made in defendant's books. But if the rule and its application herein be conceded, it does not appear that the first item, in order of dates, charged against the plaintiff, was twenty dollars for the lot.

As the lot had not been paid for when this suit was brought, the delay in commencing the action justified the court in refusing a decree. There is uncontradicted evidence that the land contracted to be sold in January, 1875, for twenty dollars, was worth $150 when the suit was brought, and the court found that the defendant after his recovery of possession in December, 1881, had erected improvements thereon of the value of $325.

January 29, 1878, the present defendant brought an action of ejectment against the plaintiff herein for the recovery of the possession of the lot in controversy in this action, wherein he recovered a judgment in June, 1878. Under an execution issued on that judgment, the defendant herein was placed in possession of the lot on the twenty-eighth day of December, 1881, and he has ever since been in possession thereof.

The present plaintiff was not required to file a crosscomplaint in the ejectment, nor to demand a specific performance therein. The judgment in ejectment was not of itself a determination of the equitable rights of the plaintiff herein, if any he had. But the commencement and prosecution of the ejectment is evidence that the present defendant did not consent to any delay in payment for the lot by the present plaintiff after the 27th of January, 1878,a date nearly six years prior to the commencement of this action.

Judgment and order affirmed.

SEARLS, C. J., and PATERSON, J., concurred.

Hearing in Bank denied.