Alta Planing Mill Co. v. Garland

The defendant Garland appeals from a judgment against him and from an order denying his motion for a new trial.

Appellant had entered into a contract with the Alta Planing Mill Company whereby that corporation for an agreed consideration was to construct a building on Broadway in the city of Los Angeles. The land of appellant adjoined that of the Mercantile Improvement Association (a corporation), upon which there was a building. The building which had

Appellant’s first contention is that the work for which the suit was brought was a part of that which plaintiff was required to do under his contract. The contract contains among its specifications the following: “The contractor shall do all that is necessary to protect the adjoining buildings, streets and the public during the excavation, doing all shoring, and bracing, and trenching required to this end.” This did not place upon the contractor the duty of going upon the adjacent property and putting supports beneath the foundations of the building thereon. It was not so understood by any of the parties thereto nor by the neighbor. Mr. Garland’s notice and demand upon the Mercantile Company (through the agency of his architects) and the admission by that company’s authorized representative of at least some liability for making the wall safe, indicates that fact. The contract imposed no greater obligation upon the Alta Company than would have rested upon appellant if he had been making the excavation without the aid of the contractor. The quoted language of the contract imposes no greater liability than that which is the owner’s under section 832 of the Civil Code. That section as interpreted by the decisions of this court does not require support for buildings which have been superimposed upon the land adjacent to that upon which an excavation is to be made. (Aston v. Nolan, 63 Cal. 271 ; Conboy v. Dickinson, 92 Cal. 604 , [ 28 Pac. 809 ]; Sullivan v. Zeiner,

Nor was the contractor liable under a clause requiring him to assume all responsibility for damages which might occur to the building or to any adjoining building by any act or omission of himself or his employees. It is the usual paragraph in such agreements protecting the owner from the results of carelessness in the prosecution of the work.

Appellant was not protected by that part of the building contract requiring the contractor to furnish any necessary thing which might have been omitted from the specifications, nor by that by which the contractor was to furnish all requisite materials for the contract price. These obviously did not include work done on another man’s property which was not a part of the scheme of construction.

A further contention is made that by an ordinance of the city of Los Angeles which was duly made a part of the contract of construction, the work done on the adjoining property was within the scope of the contractor’s duties and obligations. By one section of that ordinance every person excavating for the purpose of laying the foundations of a building “shall support and protect from damage all adjoining land, buildings, streets, alleys and sidewalks by underpinning, cribbing or shoring or such other device as will prevent all settling, cracking or damage whatever.” At the trial the court permitted an expert witness to testify with reference to the meaning of this part of the contract. He said that under the well defined custom and usage in the city of Los Angeles, the terms “shoring, bracing and trenching” had no reference to underpinning. Such testimony was entirely proper. (Civ. Code, sec. 1646; Burns v. Sennett, 99 Cal. 370 , [ 33 Pac. 916 ] ; Law v. Northern Assurance Co., 165 Cal. 394 , [ 132 Pac. 596 ].) It was clearly not within the contemplation of the parties to the contract nor the architects that the Alta Planing Mill Company should make permanent improvements upon the property adjoining that upon which the work of excavating and building was to be executed, nor was that the meaning reasonably to be derived from, the ordinance.

The work for which this suit was instituted having been ordered by the authorized agent of the appellant, there arose

Appellant’s counsel lay great stress upon the argument that there was no consideration for the extra work because the plaintiff was bound by the terms of his contract to protect the building; but that was exactly what he was not bound to do, as the foregoing discussion has indicated. As was said by the learned judge of the trial court: “Here is a clear case of a contract made by an agent for an undisclosed principal, in which case the party entering into the contract with the agent can at his option either sue the agent or the principal.” This conclusion is amply supported by authority. (Bradford v. Woodworth, 108 Cal. 686 , [ 41 Pac. 797 ]; Kerry v. Pacific Marine Co., 121 Cal. 570 , [ 66 Am. St. Rep. 65 , 54 Pac. 89 ]; 31 Cyc. 1555.)

The building contract between plaintiff and appellant provided, as such contracts generally do, that all disputes as to the meaning of the specifications should be settled by the architects, and appellant insists that this claim for extra work was subject to that rule. The obvious answer to that point is that this was a demand for extra work entirely outside of the contract for excavation and construction of the building on the Garland property.

The findings and judgment were correct in awarding to the Alta Planing Mill Company the reasonable value of the entire work. Appellant said he was authorized by Mr. Roberts to have his contractor do the work. The letter of Roberts, acting for the Mercantile Improvement Company, referred to the slipping of “the wall”—not merely the thirty-six feet nearest to the excavation—and the architects, the recognized agents of appellant, ordered plaintiff to “underpin the entire north wall.” According to his own testimony Mr. Garland was fully authorized to have the wall underpinned and to send the bill to Mr. Roberts for the corporation which the latter represented. There can be no doubt that Mr. Garland considered himself authorized to have the whole wall permanently underpinned, and the learned judge of the trial court gave full credit to hi's testimony in that regard as he stated in his written opinion.

The judgment and order are affirmed.

Lorigan, J., and Henshaw, J., concurred.'

Hearing in Bank denied.