Opinion
Hearing Granted by Supreme Court Dec. 12, 1927.
Appeal from Superior Court, Los Angeles County; L. H. Valentine, Judge.
Action by C. F. Agnifili against Antonio Lagna and others. From a judgment for defendants, plaintiff appeals. Affirmed.
COUNSEL
Culver & Nourse, of Los Angeles, for appellant.
Ernest M. Torchia and Charles Matthews both of Los Angeles, for respondents.
OPINION
PEAIRS, Justice pro tem.
This case, commenced for the purpose of foreclosing a mechanic’s lien, arose over a contract entered into between one J. J. Rue and one A. Lagna, which contract was duly assigned with the consent of defendants herein to C. F. Agnifili, plaintiff herein, by which it was agreed that four bungalows should be erected on lots 4, 5, 6, and 7, block 5, Floristan Heights Addition, Eagle Rock City, Cal., and it is alleged by the plaintiff that he built one of the bungalows on lot 5 and commenced the erection of another on lot 6. The contract price was to be $2,400 each, according to certain plans and specifications, on which payments were to be made as follows: $300 when each bungalow was ready for plastering, and $300 when outside was finished, and $1,800 when completed, credit of $140 to be given for painting, tinting, and paperhanging by the owner on each of the bungalows. Plaintiff alleges that after completing the first bungalow and beginning the second defendants failed and refused to make payments due to the plaintiff under the terms of said contract, and that plaintiff was compelled to discontinue said work by reason thereof, and that plaintiff elected to treat the failure and refusal of defendants to make such payments as a breach of the contract on the part of the defendants; and plaintiff further alleges that about the 15th day of February, 1922, the defendants without just cause forbade plaintiff to proceed with the work under the terms of said contract, and in an action other than this, to which we shall refer hereafter as action No. 103798, on or about March 14, 1922, plaintiff sued defendants for damages to the amount of what would have been the profit of the plaintiff if he had been permitted to complete the contract and build the other two houses on lots 4 and 7, alleging that the amount of the profit on said two houses would have been $650, and further sued for depreciation in the value of materials placed upon the ground for the second house to the extent of $49.13.
Defendants, answering, denied that they forbade the plaintiff for any cause to finish the contract, and defendants further alleged that they had not sufficient information to determine what profit would have been made upon said houses, had they been built, nor to inform them as to whether the plaintiff had ordered or delivered upon the ground lumber or material for the purpose of constructing another house or houses on said tract, and denied further that the lumber or material, if so delivered, had depreciated in value in the sum of $200 or any other sum or sums at all, and further denied that the plaintiff had always been ready, able, or willing to build said houses on said lots, and denied that defendant had without just cause or any cause refused to allow plaintiff to do so, and, after an amended complaint by plaintiff in which, among other things in paragraph 3 thereof, plaintiff alleged that on or about the 15th day of February, 1922, the defendants failed and refused to make payments due to plaintiff under the terms of said contract, that plaintiff by reason thereof was compelled to discontinue said work, a stipulation was entered into between the attorneys for plaintiff and defendants on the 19th day of September, 1922, that the amended complaint should be filed and deemed denied by the defendants.
This case (No. 103798) then came on for trial in October, 1922, in the superior court of Los Angeles county, in department 22 thereof. After the trial the court found that the contract as set out had been entered into and duly assigned; that it was not true that on or about the 15th day of February, 1922, or any other time, that the defendants forbade plaintiff to proceed with the work under the contract, but that the plaintiff without sufficient notice to defendants abandoned said work and failed to comply with the terms thereof; that it was true that two of the houses called for by said contract had not been constructed; that it was not true that the plaintiff had always been ready, able, and willing to construct the two additional houses; that it was not true that the plaintiff had ordered or delivered on the ground lumber and material for the erection of houses on lots 6 and 7; that it was not true that said lumber and material had depreciated to the extent of $49.13 or any other sum; that it was not true that the defendants had failed or refused to make payments due to plaintiff under the terms of said contract; that it was not true that defendants did on or about the 15th day of February, 1922, breach said contract.
As conclusions of law the court found that the plaintiff was not entitled to recover damages in the sum of $699.13 or any other sum or sums whatsoever either by reason of the nonconstruction of the two houses or depreciation in value of materials; that plaintiff was not entitled to recover any money or moneys from the defendants; and that the defendants should have judgment against the plaintiff for their costs. Judgment was entered accordingly.
On or about the 20th day of March, 1922, the plaintiff filed a mechanic’s lien against the defendants for the value of labor and materials used in the construction of house No. 1 on lot 5, less deductions, to the amount of $2,260, and also for the value of labor and material on the house on lot 6, to the extent of $1,493, or a total claim of $3,753, less payment of $801, leaving an unpaid balance of $2,952; and on the 13th day of June, 1922, the plaintiff filed suit against the said defendants to foreclose said liens, in action No. 107330, which is the present one.
In this case the defendants answered that they had paid all of the sums due for the construction of the first house on lot 5 with the exception of $10, and that they had paid $300 toward the construction of house No. 2 on lot 6, and further answering alleged that the plaintiff had, without cause or excuse, failed to erect the house on lot 6, and upon information and belief denied that there had been any labor or material furnished for the construction of the house on lot 6. This action came on for trial, and the defendants were allowed to file, as a further defense in answer to said suit, a plea of former adjudication of the same matter, and the court, after considering the presentation to it of the pleadings, findings, and judgment in the case No. 103798, found that the contract alleged to have been broken by defendants under action No. 103798 was the same contract which is set out in action No. 107330, and between the same parties as in action No. 103798. That the court in action No. 103798 had found that the plaintiff was not entitled to recover any money or moneys from defendants by reason of breach of said contract, and that no appeal had been taken by the plaintiff in said action, therefore the judgment in said action has become final; that as a conclusion of law the action before the court in this case is res adjudicata. In the case of People v. Bailey, 30 Cal.App. 581, 589, 158 P. 1036, 1039, it is said:
"In Russell v. Place, 94 U.S. 606, 24 L.Ed. 214, it is said: ‘It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. ***"’
And in the case of Green v. Thornton, 130 Cal. 482, 484, 62 P. 750, 751, the court says:
"In Southern P. R. Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355, it is said: ‘The general principle announced in numerous cases in this court is that the right, question, or fact, definitely put in issue, and directly determined by the court of competent jurisdiction as a ground of recovery, cannot be contested in a subsequent dispute between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first remains unmodified. ***"’
The contract sued on in this case is what is known as a severable contract (see Pacific Wharf & Storage Co. v. Standard American Dredging Co., 184 Cal. 21, 25, 192 P. 847), and the plaintiff under certain conditions might have sued for damages or for loss of profits and sued separately for the actual cost of labor and material. The election, however, by plaintiff to declare the alleged failure to make payments a breach of the contract did not warrant a suit for profits, but might warrant a suit for labor and material such as was instituted under the mechanic’s lien in case No. 107330. Cox v. McLaughlin, 52 Cal. 596; Id., 54 Cal. 605, 610.
The plaintiff’s manner of setting out his causes of action in the first suit (No. 103798) was such that, whether all of the matter set out in the second suit was in the same form or not, the allegations were so related that apparently all of the evidence necessary for the second action was presented in the first and ruled upon by the court and made a part of the record without objection from the plaintiff, and therefore the findings of the trial court in case No. 103798 would be necessary and in accordance with the pleadings and evidence therein. Taking into consideration the findings of the court in case No. 103798, referred to by the court in this action, it would seem that every issue involved was covered by the findings in that case. It was alleged in plaintiff’s complaint that defendants failed to make payment in accordance with the contract, and the court in case No. 103798 found that it was not true that the defendants failed or refused to make the payments due, and, in regard to the allegation of breach of contract, the court found that it was not true that the defendants did, on or about the 15th day of February, 1922, breach said contract. It further found that the defendants did not forbid or refuse to allow the plaintiff to erect said houses; it also found that the plaintiff did not deliver lumber or other materials for the purpose of erecting said houses, and it found that the houses, if constructed, would have cost more than the contract price called for. The court further found that plaintiff, without sufficient notice to defendants, abandoned the work and failed to comply with the terms of said contract.
We therefore feel that everything that could have been decided in case No. 107330 had already been decided in action No. 103798. Therefore the action before the court in case No. 107330 is res adjudicata. Judgment affirmed.
We concur: WORKS, P. J.; CRAIG, J.