Murray v. California Conserving Co.

This is an appeal from a judgment in favor of the plaintiff for the sum of $2,305.23. The facts out of which the defendant’s alleged liability arose were the following: In the month of September, 1917, the defendant had completed a building in connection with its packing plant in Hayward, which was to be used for packing and canning tomato products. On the top floor of this building was a room equipped with twenty-five large copper kettles, which were to be used in heating tomato pulp for the purpose of exhausting a certain quantity of water therefrom as to make the product fit for commercial purposes. It was found that when this portion of the plant was put in operation the said room became filled with steam so as to make it impossible for men to remain at work therein for any considerable length of time. It became necessary to remedy this condition immediately, and with that end in view the defendant’s superintendent of the plant requested the plaintiff to call at the plant on the afternoon of September 27, 1917, for the purpose of consultation as to how to effectually remove the practical difficulties of the situation. The plaintiff suggested a system of ventilation by the use of fans and motors, and it was agreed that he should investigate the matter and report with respect to such system and the cost of installing the same. A few days later the plaintiff submitted a proposition in writing in which, representing the company with which he was connected, it was proposed to furnish and install certain fans and motors of specified sizes and power, together with the switch-boxes, starting devices, belting, and wires necessary to connect the same with the defendant’s wiring system already installed in the building. By the terms of this proposition all necessary connecting, framing, carpenter work, housing, and the furnishing of all labor and material necessary for the installation of said motors and fans except that above specified was to be furnished by the defendant as the owner of the building. The plaintiff’s proposition embraced the following statement: “It is the intention and understanding

The complaint filed herein was in the form of the common count for work and labor done and performed and material

Upon the introduction of evidence pro and con upon the issues thus framed the cause was presented to the jury under the instructions of the court, and the jury presently returned a verdict in the plaintiff’s favor for the full sum demanded in his complaint. From the judgment entered upon such verdict the defendant prosecutes this appeal.

The first contention of the appellant is that the trial court was in error in giving to the jury the following instruction: “If you find from the evidence that a portion of the work incidental to the ventilating system was to be done by the defendant corporation, then there was an implied contract on the part of the defendant to perform its share of such work in such manner as to enable the plaintiff to complete his share of the work in the manner agreed upon. And if you find that the defendant failed to perform in a workmanlike manner its share of the work, and such failure prevented plaintiff from completing the work, then your verdict should be in favor of plaintiff and against defendant.”

And again: “If the ventilating apparatus failed to ventilate the building because of careless or unskillful installation by the employees of the defendant of the wiring system, or the failure to house, or the careless or unskillful housing,

The basis of the appellant’s objection to these instructions is its claim that the plaintiff, having predicated his action upon performance on his part of the agreement for the installation of the ventilating system in question, and having failed to show performance on his part of that portion of said agreement which is above quoted, as expressing the intent and understanding that the ventilating system would so exhaust the steam-laden air from and so deliver fresh air into the work room to be ventilated as to make the same habitable for the workmen employed therein, was not under such a pleading entitled to prove prevention of performance on the part of the defendant as a basis for his recovery under the common counts; and hence that the above-quoted instructions on the part of the court were erroneous.

We find no merit in this contention. [1] The plaintiff brought this action in the form of the common counts upon the theory, well established in a long line of cases in this state, that where full performance on the part of the plaintiff has been prevented by acts of the defendant, the plaintiff may treat the contract as abandoned, and bring a suit under the common counts for the reasonable value of the materials furnished and services performed. (Jones & L. Co. v. Doble Co., 162 Cal. 497 , [ 123 Pac. 290 ]; Brown v. Crown G. M. Co., 150 Cal. 376 , [ 89 Pac. 86 ]; Griffith v. Happersberger, 86 Cal. 605 , [ 25 Pac. 137 , 487].) In accordance with the principle announced in these eases we are of the opinion that the plaintiff was entitled to bring this action in the form of a common count, and to introduce thereunder the contract entered into between the parties, and show the defendant’s acts amounting to an interference with the full performance of the same upon the part of plaintiff,, and to recover thereunder the amount specified in said contract and the reasonable value of such extra work as had been done under the supplementary oral agreement. The instructions of the court to which the defendant objected were, therefore, correct in their, application to the facts of the case at bar. The cases cited by the defendant in support of his foregoing con

[2] The next contention of the appellant is that the plaintiff, in so far as he relied upon his alleged right to recover for the extra work done under the oral agreement between him and the superintendent of the defendant, was not entitled to recover for the same, for the reason that he failed to establish authority on the part of said superintendent of defendant to enter into said oral supplementary agreement, and we find this contention also to be devoid of merit. The evidence, in our opinion, sufficiently shows that the superintendent of defendant was so far in charge of the operation of its packing plant as to possess at least ostensible authority to make both of the agreements in question, and that the plaintiff was entitled to rely upon that fact in proceeding to do the work performed by him under the supplemental oral agreement, and hence was entitled to recover for the same.

[3] The final contention of the appellant is that the plaintiff by his written agreement in substance guaranteed that the ventilating system to be installed by him thereunder would exhaust the superheated air and steam from the place in which it was to be installed, and would so introduce fresh air into the same as to render it habitable for workmen, and that having failed to perform this condition of his contract he is not entitled to recover. The difficulty with this contention consists in the fact that the evidence sufficiently shows that when the plaintiff’s ventilating system was installed and put in operation it did for a time accomplish its purpose, and only failed to do so when its motors and material had been so affected by contact with the steam within said room as to refuse to function, which contact was due to the lack of proper housing, which, under the aforesaid agreement, it was the duty of the defendant to have provided. We find, therefore, that this final contention of the appellant is also untenable.

Judgment affirmed.

Waste, P. J., and Beasly, J., pro tem., concurred.

All the Justices concurred.