Indeed, the issue whether we should broaden the basis of quasi-contractual recovery so as to prevent any unconscionable injury to the plaintiff, is not a novel one for our court. In his dissenting opinion in Coleman Engineering Co. v. NorthAmerican Aviation, Inc. (1966) 65 Cal.2d 396 [ 55 Cal.Rptr. 1, 420 P.2d 713], Chief Justice Traynor cogently urged that we abandon the unconscionable requirement of "benefit" to the defendant and allow recovery in quantum meruit whenever a party acts to his detriment in reliance on another's representation that he will give compensation for the detriment suffered. In Coleman, plaintiff sued for breach of a contract for the construction of missile trailers.
The trial court relied upon several California cases for this proposition. The court cited Bodmer v. Turnage, 105 Cal. App. 2d 475, 233 P.2d 157 (Cal. Dist. Ct. App. 1951), Earhart v. William Low Co., 25 Cal. 3d 503, 600 P.2d 1344, 158 Cal. Rptr. 887 (Cal. 1979), and Chief Justice Traynor's dissent in Coleman Eng'g Co. v. N. Am. Aviation, Inc., 65 Cal. 2d 396, 420 P.2d 713, 55 Cal. Rptr. 1 (Cal. 1967).[37] In Bodmer v. Turnage, 105 Cal. App. 2d 475, 233 P.2d 157 (Cal. Dist. Ct. App. 1951), the defendant/owner purchased lots in a desert resort development.
Among other things, Ratcliff argued that TJEG's claims for additional work based on an increase in the basic scope of work on the project (including the additional contract administration claims) were precluded by the incorporated provisions of paragraph 5 of the Ratcliff/County Contract, and that paragraph 5.05 ("Substantial changes in the Project's scope shall provide sufficient basis for renegotiation of [Ratcliff's] fee.") was an unenforceable agreement to agree. TJEG argued that, under the authority of Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396 [ 55 Cal.Rptr. 1, 420 P.2d 713] ( Coleman), such contract modifications were within the contemplation of the parties, enforceable even in the absence of prior agreement on price or cost, and required the parties to negotiate in good faith for an appropriate adjustment. In Coleman, the parties' contract (which consisted of purchase orders) included a provision that, "`Buyer reserves the right at any time to make changes in drawings and specifications.
See Starsky v. Williams, 512 F.2d 109, 112 (9th Cir. 1975). If an essential element of a promise is reserved for future agreement by both parties there is no legal obligation until such future agreement is made. Coleman Engineering Co. v. North American Aviation, Inc., 65 Cal.2d 396, 405, 420 P.2d 713, 719, 55 Cal.Rptr. 1, 7 (1966). However, if the term awaiting future agreement is not essential, "`each party will be forced to accept a reasonable determination of the unsettled point or if possible the unsettled point may be left unperformed and the remainder of the contract be enforced.'"
One effect of this rule is to encourage mitigation of damages. ( Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396, 409 [ 55 Cal.Rptr. 1, 420 P.2d 713].) ("If the rule were otherwise, a plaintiff might be encouraged to forego opportunities to mitigate damages so as not to jeopardize his right to prejudgment interest.")
"[W]hen the exact sum of indebtedness is known or can be ascertained readily, the reason for the denial of interest does not exist ( Conderback, Inc. v. Standard Oil Co., 239 Cal.App.2d 664, 690 [ 48 Cal.Rptr. 901]. If the amount owing can be calculated and determined from statements rendered by the plaintiff to the defendant and the statements are found to be true and correct, it is a matter of mere calculation within the statute ( Coleman Engineering Co. v. North American Aviataion, Inc., 65 Cal.2d 396, 407-408 [ 55 Cal.Rptr. 1, 420 P.2d 713].)" ( Distefano v. Hall, 263 Cal.App.2d 380, 388 [ 69 Cal.Rptr. 691].) In Conderback, Inc. v. Standard Oil Co., 239 Cal.App.2d 664, 690 [ 48 Cal.Rptr. 901], it was observed that the defendant in that case could not determine the amount it owed until it received from the plaintiff a statement accompanied by supporting data from which to make the determination.
Prejudgment interest is also awarded on a cost-plus contract notwithstanding that some of the cost items include percentages of the plaintiff's indirect and overhead costs. ( ColemanEngineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396, 407-409 [ 55 Cal.Rptr. 1, 420 P.2d 713].) The fact that liability may be disputed does not preclude prejudgment interest.
"Whether a term is ‘essential’ depends on its relative importance to the parties and whether its absence would make enforcing the remainder of the contract unfair to either party." ( Copeland v. Baskin Robbins U.S.A. (2002) 96 Cal.App.4th 1251, 1256, fn. 3, 117 Cal.Rptr.2d 875, citing Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396, 417, 55 Cal.Rptr. 1, 420 P.2d 713, and City of Los Angeles v. Superior Court (1959) 51 Cal.2d 423, 433, 333 P.2d 745.) "When, however, ‘a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.’ "
Where these matters are unessential, the unsettled point may simply be left unperformed and the remainder of the contract enforced as written. (Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396, 405; City of Los Angeles v. Superior Court (1959) 51 Cal.2d 423, 433.) When they are essential, however, the agreement to agree in the future is unenforceable.
The discrepancy did not "detract from the proposition that the damages [were] fixed or determinable." (See also Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396, 408-409 [ 55 Cal.Rptr. 1, 420 P.2d 713], disapproved on another ground in Earhart v. William Low Co. (1979) 25 Cal.3d 503, 513 [ 158 Cal.Rptr. 887, 600 P.2d 1344] [plaintiff's original demand was $7,000 too high due to an error in the pricing formula; court explained that "the erroneous omission of a few matters from the account or erroneous calculation of the costs do not mean that the damages are not capable of being made certain by calculation" (65 Cal.2d at p. 409.)].) Similarly in the instant case, buyer's controller's minor error did not make buyer's damages uncertain.