Opinion
Civ. No. 756.
May 17, 1910.
APPEAL from a judgment of the Superior Court of Los Angeles County. Chas. Monroe, Judge.
The facts are stated in the opinion of the court.
J. L. Murphey, and Murphey Poplin, for Appellant.
C. S. Tappan, for Respondent.
Action to recover balance due on contract for constructing and installing an electric lighting and heating plant, with counterclaim for damages for failure to comply with contract. Judgment was for defendant for his costs on the complaint and for plaintiff on the counterclaim. Defendant appeals from that part of the judgment which denies him relief on his counterclaim, and the record is presented under the alternative method.
The plaintiff agreed to construct, on a boat belonging to defendant, an electrical plant to be comprised of engine, generator, switchboard, storage batteries, electric cooking range, searchlight and the necessary wiring and equipment to operate the same; to perform the labor necessary to install the plant, and do the engineering required for and the superintending of the installation of said plant; for which defendant was to pay the actual cost of material and apparatus purchased and manufactured, seventy-five cents per hour for labor in installing the plant, transportation of workmen from Los Angeles to San Pedro and their board and lodging at the latter place if they remained there while engaged in the work; and for engineering and superintending fifteen per cent of the actual cost of the plant, such cost in any event to be not less than $2,500 for this purpose. The complaint alleges that plaintiff expended $3,700.81; that there was additional apparatus purchased by it in the sum of $320.39 for use in the plant, which was billed to defendant, upon which it is entitled to a commission; that there have been paid on said items, respectively, $3,437.64 on account of materials, and $200 on account of commissions, leaving an unpaid balance of $666.72 due from defendant to plaintiff.
The answer denies that the materials were of any greater value than the sum paid by defendant to plaintiff, and denies any indebtedness on account of commissions, for the reason that the contract was not complied with by plaintiff and no commissions earned. The counterclaim of defendant of $5,754.03 is made up of the $3,437.64 paid to plaintiff for materials, which it is contended are lost to defendant because the plant is valueless and useless to him, except that portion thereof which may be used as a lighting plant, which is of the value of $1,000, and certain fixtures, air-compressor and searchlight of the value of $320.39; and the further alleged items of $1,000 damages for loss of use of the boat for two months owing to delay of plaintiff with the work done; $500 damages for loss of use of the plant for six months; and $500 for completion of installation of parts of the plant left unfinished by plaintiff.
The trial court found the contract to have been made as alleged; that plaintiff pursuant thereto purchased material and apparatus and performed labor to the value of $3,610.98, but did not complete said plant in accordance with the contract; that "defendant had paid to plaintiff [said sum ($3,610.98)] with full knowledge that said contract had not been carried out in accordance with the agreement entered into between plaintiff and defendant; . . . that by reason of said failure to complete said contract [plaintiff] is not entitled to recover any further or additional remuneration for said services rendered, other than said sum of $3,610.98, paid by defendant to plaintiff under the terms of said contract"; that defendant was not damaged in any sum whatever by reason of the delays in installing the plant, and that defendant is not indebted to plaintiff in any sum under the contract. The two findings, however, as to which appellant principally urges error are as follows: "VI. That defendant was fully informed of the fact that said plant had been improperly installed by plaintiff, and defendant acquiesced in any and all delays in the installation of said plant, and, with full knowledge of said facts, the defendant paid said sum of $3,610.98 to plaintiff"; and "IX. The court further finds that, in respect to the counterclaim of defendant against plaintiff, any damage suffered by reason of the nonperformance of said contract by plaintiff has been waived by reason that defendant, with full knowledge of said facts, having paid for and accepted said work."
We are of opinion that there is evidence in the record to sustain these findings. While defendant testified that he was not an electrical expert, he further testified that after he became suspicious of the electrical ability of plaintiff's supervising manager, Mr. Sirch, he consulted experts and took their advice in the matter; that he was "on the job" generally six or seven times a week, always once a week, for two or three hours; and that, at the second visit of Sirch to the boat, he (Sirch) was guilty of such manifest absurdities in his attempts to take measurements of the boat for the purpose of installing the plant as caused the defendant and his construction foreman to look at each other and smile. This was before any work was done on the contract. The witness Sirch also testified that defendant personally directed the designing, the placing of the conduits and their quality, and passed upon every step as the work progressed, including the wiring of the circuits and how they would have to be and the location of each piece of machinery. "He instructed what he wanted there and I did what he said." The bill of particulars rendered by plaintiff shows services performed and material furnished between April and December, 1907, principally prior to September, and the fourteen checks of defendant introduced as evidence of payments made by him to plaintiff for the work done under the contract bore dates running from April 29, 1907, to December 21, 1907. This would seem to support finding VI without further examination of the record. That the later correspondence between the parties contained charges of misrepresentation and bad faith made by each to the other is not evidence that defendant did not accept the work as done by plaintiff. It was not necessary that the entire work be completed before there could be an acceptance of any of the work by the defendant. There was evidence to sustain the finding of the court to this effect.
The contention of appellant that the decision is against law is equally untenable. The defendant with full knowledge of all the defects in the work accepted and paid for it, and he thereby waived his claim for damages. This is not a case in which judgment has been given on a quantum valebat or quantum meruit count, but one in which the court has found that goods and labor to a certain value have been furnished under the contract and so accepted by defendant, notwithstanding they were not up to the standard fixed by the contract. In other words, there has been an extinction of the obligation of plaintiff to make good the breach of contract of which it was guilty by an acceptance of the work by defendant, which is in the nature of an accord and satisfaction. The court did not recognize the plaintiff's right to retain the amount received by it from defendant on the ground that the goods furnished and services rendered were reasonably worth that amount, but because defendant accepted them in compliance with the contract and paid that amount for them. There is no common count in the complaint.
The residue of the damage claim of defendant, which covered all but the matters which the court found were accepted, consisted of damages for delay, repairs, etc., and all these were negatived by the court's findings.
Judgment affirmed.
Allen, P. J., and Shaw, J., concurred.