Gray v. Bekins

The partial destruction of an unfinished building by an earthquake on April 18, 1906, engendered the controversy which culminated in the present action. Plaintiffs had constructed the first and second stories of a six-story brick and concrete warehouse, which they had contracted to build for defendants, when the portions erected were damaged by earthquake on the date above mentioned. When plaintiff H. N. Gray, defendant Martin Bekins, the architect, and brick contractor met at the building a few; weeks after the earthquake and examined the structure to ascertain the damages, it was decided that some repairing was necessary. .The exact amount of repairing was not determined, but there is testimony that it was decided that, before any further work was performed by plaintiffs, the building inspector of the board of public works of San Francisco should pass upon the extent of repairing to be done so that any subsequent controversy with the board might be avoided.

Plaintiff H. N. Gray testified that it was agreed that, before plaintiffs proceeded with the work, the examination by the building inspector should be procured by defendants and that the latter should inform plaintiffs of the result. The next information plaintiffs received after the meeting of the parties at the building above referred to was in the following month of June, when plaintiff - H. N. Gray drove to the

In August, 1906, plaintiffs instituted the present action for the recovery of $6,242.03, the difference between $13,742.03, the value of the work performed on the building by plaintiffs up to April 18, 1906, and seven thousand five hundred dollars, the sum alleged by plaintiffs to have been paid by defendants. The complaint contains three causes of action. In the first cause of action it is alleged that defendants prevented the performance of the contract by the acts above set forth. The second and third counts omit all reference to the contract and are respectively in indebitatus assumpsit and quantum meruit. Defendants’ answer denies that performance of the contract was prevented by defendants, admits the value of the work performed by plaintiffs was $13,742.03, and alleges that $10,485.00 of this sum has been paid, alleging, by way of a special defense and counterclaim, that the contract provides that the sum paid should at no

The trial court found, among other things, that defendants rendered it impracticable and impossible for plaintiffs to proceed with the construction of the building by taking possession of and occupying the unfinished building as a warehouse and by tearing down and demolishing large portions of the unfinished warehouse, all without authority or consent from plaintiffs. The court further found that $13,742.03 was the value of labor and material furnished by plaintiffs in the construction of the warehouse, of which sum $10,485.00 had been paid plaintiffs by defendants, and rendered judgment in favor of plaintiffs for the sum of $3,257.03. Defendants appeal from the whole of the judgment and plaintiffs appeal from that portion which allows plaintiffs interest on the amount of the judgment only from the date of the entry of the judgment.

The main point advanced by defendants is that plaintiffs failed to allege or prove full performance or facts excusing performance by plaintiffs. [1] A party who has contracted to perform an act for an agreed consideration can maintain an action upon the contract even though he himself has failed to fully perform if performance on his part was prevented by operation of law, the act of the other party to the contract, the act of God or of the public enemy. (Civ. Code, sees. 1511, 1512, 1514.) [2] If the other party to the contract has not actually prevented performance, but has merely committed a breach of the contract, the party who has not fully performed the act agreed upon cannot maintain a suit upon the contract, but may treat the contract as terminated and sue for the reasonable value of that which he furnished under the contract. (Cox v. McLaughlin, 76 Cal. 70 , [ 9 Am. St. Rep. 164 , 18 Pac. 100 ]; Carlson v. Sheehan, 157 Cal. 692 , 696, [ 109 Pac. 29 ]; Connell v. Higgins, 170 Cal. 541 , [ 150 Pac. 769 ].) [3] In the instant case plaintiffs have treated the contract as rescinded and are suing for the reasonable value of labor performed and materials furnished,

[4] In every building contract which contains no express covenants on the subjects there are implied covenants to the effect that the contractor shall be permitted to proceed with the construction of the building in accordance with the other terms of the contract without interference by the owner and that he shall be given such possession of the premises as will enable him to adequately carry on the construction and complete the work agreed upon. Such terms are necessarily implied from the very nature of the contract and a failure to observe them not consented to by the contractor constitutes a breach of contract on the part of the owner entitling the contractor to rescind, although it may not amount to a technical prevention of performance.

[5] In the instant case the contract provided for an apportionment of loss between owner and contractor in the event of a partial destruction by earthquake, but the contractor was not thereby relieved from performing the contract, nor did the contract require or authorize the owner to take possession of the building and repair the same in the event of a partial destruction. [6] There was a provision in the contract authorizing the owner to supply the contractor with the men and material necessary to complete the work in the time required by the contract if the contractor ■ failed to make adequate provisions along these lines after three days’ notice by the owner. However, the effect of this provision was to permit the owner to furnish men and material for the contractor’s use only; it did not authorize the owner to take charge of the work himself. (American-Hawaiian Eng. etc. Co. v. Butler, 165 Cal. 497 , [Ann. Cas. 1916C, 44, 133 Pac. 280 ].) [7] Moreover, the only notice from defendants to plaintiffs was the notice of August 14, 1906, which was ineffectual for any purpose in view of the fact that, long before this notice, defendants had taken possession of the building and assumed charge of the work. The contractor was under the same obligation to continue and complete the building after the partial destruction as before, and

Likewise the occupancy of the building by defendants as a warehouse, without plaintiffs-’ consent, was a breach of plaintiffs’ rights under the contract. By reason of these violations, plaintiffs were entitled to treat the contract as terminated and sue for the value of what they had furnished. (Adams v. Burbank, 103 Cal. 646 , [ 37 Pac. 640 ].)

Defendants next attack certain findings of the trial court. It may be stated that the evidence upon the question of the extent of the occupancy of the building by defendants subsequent to April 18, 1906, as well as the evidence upon the question of plaintiffs’ consent to defendants’ acts, was conflicting. Upon these issues we have merely set forth the evidence in favor of plaintiffs upon which the findings Were based, for that part of the conflicting testimony credited by the trial court constitutes the facts of the case for the purpose of this appeal.

The findings of the trial court are to the effect that defendants, without plaintiffs’ consent, took possession of the building about April 25, 1906, occupied the same as a warehouse and have ever since continued to so occupy it; that they demolished portions of the said building without authority or consent from plaintiffs, and that, until these acts of defendants, plaintiffs performed all conditions of the contract upon their part. These findings, together with findings of the value of the work performed and material furnished

[H] The facts that under the terms of the contract plaintiffs could demand only three-fourths of the value of the work performed by them until the building was completed and that they were to share the expenses of repairing damages caused by earthquake can have no effect upon the judgment in this case. The plaintiffs have not sued upon the contract and the provisions of the contract do not control, for defendants cannot ignore their own obligations under the contract and, at the same time, seek to hold plaintiffs to its terms. (Adams v. Burbank, 103 Cal. 646 , 650, [ 37 Pac. 640 ]; Keeling v. Schastey, 18 Cal. App. 764 , 768, [ 124 Pac. 445 ]; Tubbs v. Delillo, 19 Cal. App. 612 , [ 127 Pac. 514 ].)

[12] A witness called in behalf of plaintiffs was asked if the occupancy of the property by defendants in the manner

As previously stated, plaintiffs also appeal from the judgment, and that appeal is grounded in the contention that inasmuch as there was not at any time any dispute as to the value of the work performed and materials furnished by the plaintiffs, the sum to which the plaintiffs are entitled was liquidated and certain, and that therefore the plaintiffs should have been allowed interest on the amount of the judgment from the date of the commencement of the action.

The value of the labor performed and materials furnished by plaintiffs in the construction of the warehouse was expressly admitted in the answer of the defendants to be the sum of $13,742.03, as pleaded in the plaintiffs’ complaint.

[13] The general rule is that interest is allowable from the time the sum in suit becomes due if the same is certain or can be made certain by mere calculation. [14] In actions upon contracts the sum due or the means of calculating the sum are usually clearly provided for in the contract and interest is consequently allowable from the time the sum in suit becomes due. (Civ. Code, sec. 3302; Fairchild v. Bay Point etc. R. R. Co., 22 Cal. App. 328 , [ 134 Pac. 338 ].) [15] True, the action here is one in quantum meruit, but even so, if the exact amount of the indebtedness due the plaintiffs was known to and admitted by the defendants, the parties to be charged, the reason for refusing interest until the amount due is made certain by evidence no longer obtains. (Cox v. McLaughlin, 76 Cal. 60 , [ 9 Am. St. Rep. 164 , 18 Pac. 100 ]; Courteney v. Standard Box Co., 16 Cal. App. 600 , [ 117 Pac. 778 ].) The test, then, to be applied in the instant case is whether or not the exact sum found to be due was known and admitted by the defendants to be due to the plaintiffs. We are of the opinion that the allegations of the defendants’ answer in the particulars previously pointed out constituted an acknowledgment of plaintiffs’ claim, to the extent of the sum therein, admitted, and by the trial court found to be due to the plaintiffs. In short, the admission of the defendants’ answer in this behalf was tantamount to an ascertainment of the balance found to be due the plaintiffs, and, consequently, interest should have been allowed thereon from the date of the filing of the answer, namely, March 27, 1907. (Skinker v. Clute, 9 Nev. 342 .)

It follows from what has been said that the judgment against the defendants must be, and it is hereby, affirmed. It likewise follows that the judgment allowing interest to the

Olney, j., Sloane, J., Wilbur, J., Shaw, J., Angellotti, C. J., and Lawlor, J., concurred.