Opinion
Civ. No. 812.
May 18, 1910.
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Walter Bordwell, Judge.
The facts are stated in the opinion of the court.
Davis, Kemp Post, for Appellant.
Jones Weller, and Frank G. Finlayson, for Respondent.
Action by plaintiff as the assignee of Franklin Drain, constituting a copartnership, to recover upon quantum meruit for labor done and materials furnished at defendant's instance and request in grading and improving a certain tract of land owned by defendant. Judgment went for plaintiff, from which, and an order denying his motion for a new trial, defendant prosecutes this appeal.
It is alleged in the complaint that the reasonable value of the work done and materials furnished was the sum of $51,095.74, upon which defendant paid $31,954.30 and no more, leaving a balance unpaid of $19,141.44, for which plaintiff asks judgment.
In defense of the cause of action defendant by his answer avers that the work was done and the materials furnished pursuant to a written contract made between defendant and said copartnership of Franklin Drain, by the terms and provisions of which it was agreed that said work was to be performed as a whole, but at prices therein stipulated for each class of work, and the whole completed by December 15, 1906. Defendant further avers that neither the contract price nor the reasonable value of the labor done and materials furnished is in excess of $40,000, upon which he had paid $31,954.30, and denies that any balance remains due and unpaid by defendant for and on account of said work. It is further alleged that by said contract it was agreed that twenty-five per cent of the value of the labor performed and materials furnished in doing the work should be reserved and not paid until thirty-five days after the expiration of the time for completion and acceptance of the whole of said work; that neither said contractors nor any one for them has performed the whole work agreed to be done and performed, and that to complete the same will require an expenditure by defendant of $5,000 over and above the contract price; that by reason of said failure to perform the contract in accordance with its terms defendant has been damaged in the sum of $25,000.
The court made findings as to the reasonable value of the work done and materials furnished, the amount paid thereon, and the balance remaining due and unpaid. In response to the affirmative allegations of the answer, the court found that Franklin Drain, plaintiff's assignors, entered into a contract with defendant for the improvement of the tract of land, and pursuant to the terms and provisions thereof entered upon the performance of the work. It also found that by an oral agreement between the parties the contract was thereafter modified, in that the time for completion of the work was extended and provision made for making the payments other than as stipulated in the contract; that defendant neither complied with the terms of the written contract nor with the modification thereof; that plaintiff and his assignors did not refuse to complete the construction of the work mentioned in the contract or fail to comply with the terms thereof on their part, but did, on September 28, 1907, by reason of defendant's neglect and failure to make the payments pursuant to the terms and provisions of the contract, consider and treat the same terminated and refused to proceed further in the prosecution of the work thereunder.
These facts, if true, clearly justified the contractors in refusing to proceed further with the performance of the work, and entitled their assignee to maintain an action for the reasonable value of the work theretofore done and materials furnished. ( San Francisco Bridge Co. v. Dumbarton etc. Co., 119 Cal. 272, [51 P. 335]; Cox v. McLaughlin, 76 Cal. 60, [18 P. 100]; Porter v. Arrowhead Reservoir Co., 100 Cal. 501, [35 P. 146].)
Defendant contends, however, that certain of these findings are not supported by the evidence. It is insisted that there is no evidence tending to prove a modification of the contract, and likewise a want of any evidence tending to prove that defendant failed to comply with the provisions of the contract, either as originally made or as claimed to have been modified. The contract was introduced in evidence and the court made acquainted with its terms and conditions. It is not, however, incorporated in the bill of exceptions, or otherwise brought up in the record; nor is there any evidence touching the terms and provisions thereof. There is evidence as to what the parties did, but the record is wholly silent as to what they were required to do under the terms and provisions of the contract. It is, therefore, impossible for us to say that the evidence was insufficient to show a breach of the contract on the part of defendant, or to support the finding that plaintiff and his assignors fully complied with the contract on their part.
The record discloses evidence to the effect that after the work had been prosecuted for some months, during which time the payments, so far as made, appear to have been in accordance with estimates furnished monthly by an engineer, it was agreed to dispense with these estimates and defendant was to make weekly payments sufficient to meet the payrolls of the men employed by the contractors, and at the end of each month make payments in amount sufficient to meet other necessary expenses incurred in the performance of the work and furnishing the materials therefor. It also tends to prove that defendant in making the payments was in arrears practically from the commencement of the work. On September 16, 1907, plaintiff served notice upon defendant to the effect that, owing to his neglect and failure to pay the several amounts as they became due, it would be impossible to further prosecute the work, and unless payment was made he would abandon the work. Notwithstanding this notice, defendant refused to make a payment of $120 required to meet the payroll on September 28, 1907, whereupon plaintiff ceased work.
The court finds that the time for completion of the work as fixed in the contract was extended by the oral agreement. The contract is not before us, and the time fixed therein may have been at a date subsequent to the ceasing of work by plaintiff. There is some evidence tending to prove that the time was extended. Franklin testifies: "There was an absolute promise made by Mr. Schmidt that we were to be granted all the necessary time to complete that work." We cannot say that the expression "that work" did not refer to the whole work to be done under the contract, instead of additional work required in the sloping of embankments. Considering the conditions under which the work was done, it seems to have been prosecuted with reasonable diligence. There is also evidence tending to show that defendant was in arrears in making payments during the period covered by the months of June, July and August.
In the absence of the written contract or any evidence as to its terms and provisions, we cannot say that the findings complained of are not supported by the evidence.
Furthermore, conceding the finding as to the modification of the contract to be unsupported by the evidence, nevertheless, it became harmless in view of the fact that the court found that defendant failed to comply with the written contract, and that plaintiff and his assignors did comply with it on their part up to September 28th, when, owing to the breach of contract by defendant, they ceased work thereunder. As to the findings in this regard, no objection can be urged that it is not supported by the evidence, for the reason, as hereinbefore stated, the contract was before the trial court and it is not embodied in the record on appeal.
What is here said sufficiently disposes of the contention that defendant's motion for nonsuit should have been granted. There was no error in denying the motion.
A number of assignments of error are predicated upon rulings of the court made in excluding answers to questions put by defendant. The evidence sought to be elicited by these questions all pertained to damages alleged to have resulted from the contractors' failure to complete the work within the time specified in the contract. There is nothing in the record, however, from which it can be determined that the court erred in making such rulings.
Appellant contends that the amended complaint failed to state a cause of action by reason of the fact that it is not alleged that the amount sued for is "due and owing." In view of the fact that the complaint formally and in direct terms alleged nonpayment, no good purpose could be subserved by inserting words constituting a mere legal conclusion, and from the use of which, at most, and then only in the absence of a demurrer, the fact of nonpayment might be implied. ( Penrose v. Winter, 135 Cal. 289, [ 67 P. 772].)
The record discloses no prejudicial error, and the judgment and order appealed from are affirmed.
Allen, P. J., and Taggart, J., concurred.