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District Court of Appeal, First District, Division 2, California.


Civ. 11942.

Decided: July 21, 1942

Courtney L. Moore and Walter A. Dold, both of San Francisco, for plaintiffs and appellants. Theodore M. Stuart, of San Francisco, for defendants and appellants.

Two cross–appeals are herein presented on the one typewritten transcript: (1) An appeal by defendants from a judgment in favor of plaintiff, P. L. Burr, and (2) an appeal by plaintiff, Burr, from that part of the judgment only which failed to allow him as part of his recovery two additional items of $481.38 and $2,140.

The action arose out of work done by Burr for defendant DuPuy in the construction of the Broadway low level tunnel for Joint Highway District No. 13, and was for work, labor and materials furnished by said plaintiff. The amount of the judgment for plaintiff is not attacked by defendants, and we are entitled to assume that it is supported by the evidence. Defendants urge two grounds for reversal which are thus stated in their opening brief:

“1. Can a contractor quit an uncompleted job, and recover the reasonable value of work and labor performed when he quits in direct violation of the terms of his written contract?

“2. Can two persons jointly maintain a lawsuit for work and labor performed as contractors on a construction job when only one of them has a contractor's license, when the other has no license, and when the two of them have not a joint or combination license as required by the Contractors' License Law?”

Under point one defendants in their opening brief assume, without argument or discussion, that the work sued for by Burr was done under a written contract and that certain provisions of that contract were violated by Burr when he quit the job with his work unfinished on October 15, 1937. This assumption flies directly in the teeth of findings V and VII made by the trial court in the following language:

“V. That the said plaintiff and the said DuPuy on June 30, 1937, and July 1, 1937, attempted to enter into a written agreement under which the said plaintiff was to furnish said labor, materials and supplies, and there was then prepared a portion of said agreement in typewriting with ink interlineations and four separate letters; all to be signed or initialed by the plaintiff P. L. Burr and the said defendant DuPuy. That the said plaintiff Burr and the said defendant DuPuy verbally agreed that all of the said writings combined would constitute their written agreement, one of which was the ‘breakdown’ on which the monthly payments were to be computed. Thereupon the said Burr signed or initialed all of said papers and the said DuPuy signed or initialed all thereof except the fourth letter (referred to in the evidence as the ‘disputed letter’) which said letter the said DuPuy accepted and approved and agreed to sign and mail to said Burr; that thereafter said DuPuy falsely represented that he had signed and mailed the same to said Burr; that the said disputed letter contained material provisions and agreements without which the said attempted written agreement was incomplete and failed to accomplish a complete meetings (sic) of minds or become a binding written contract; that said DuPuy has repudiated the obligations of said disputed letter.”

“VII. That although the said attempt to enter into an agreement in writing failed the said plaintiff and the said defendant DuPuy proceeded with said work as though the prices, terms of payment and times of payment set forth in the said various writings were effective and represented to that extent the agreement of the parties; and, in furnishing the said labor, materials and supplies, the said defendant DuPuy well knew that the said plaintiff was proceeding upon the understanding that the agreed prices, terms of payment and times of payment were those set forth in the said various writings; and the said defendant DuPuy recognized his obligation to pay said prices at the times and in the amounts so specified. That the said agreed prices were and are the reasonable value of the said labor, materials and supplies.”

These two findings are in no way attacked in defendants' opening brief, and in their closing brief they content themselves with a general statement that both parties recognized from July 1 to October 15 that they were conducting their operations under a contract. In this state of the briefs we would be justified in assuming that finding V and VII above quoted find ample support in the evidence. Robben v. Benson, 43 Cal.App. 204, 213, 214, 185 P. 200; Royal Realty Co. v. Harvey Inv. Co., 95 Cal.App. 352, 360, 272 P. 805; Brovelli v. Bianchi, 136 Cal. 612, 69 P. 416; 2 Cal.Jur. 877.

An examination of the transcript shows that this assumption is correct. Taking the evidence most favorable to plaintiff (in accordance with the time honored rule governing appellate courts) it appears that a typewritten contract to be executed by Burr and DuPuy was prepared by an attorney acting for DuPuy; that this contract was supplemented by three letters signed or initialed by both parties; that Burr submitted to DuPuy a fourth letter (called in finding V the “disputed letter”) stating that he would not sign the formal contract unless DuPuy agreed to and signed this fourth letter; that DuPuy promised to sign the letter and thereupon the formal contract was signed by Burr, and DuPuy had his pen in hand prepared to sign the letter when they were interrupted by a third party; that DuPuy then said that he would sign the letter later and mail it to Burr and that Burr before leaving said: “Now that is the condition because I do not want to go on with this contract and will not go on with this contract unless that letter is satisfactory and according to our agreement.” The “disputed letter” was never signed by DuPuy although several times afterwards he promised Burr that he would sign it. Meanwhile Burr entered upon the performance of the work, and progress payments were made to him until October 15 when DuPuy refused to pay him anything further and Burr thereupon quit the job.

The evidence above recited having to do with the “disputed letter” is corroborated by certain witnesses, who represented the bonding company which furnished Burr's bond on the representation of DuPuy that he had signed or would sign the “disputed letter.” Their testimony further shows that when it finally became apparent that DuPuy had not signed and would not sign the “disputed letter” the bonding company refused to be bound by its bond and returned the check for the premium to DuPuy.

That under the facts found by the trial court in finding V no binding written contract was ever entered into is such a simple truism of the law of contracts as to require no citation of authority. In the language which is familiar to every first year law student there was no meeting of the minds.

When DuPuy on October 15 refused to pay Burr any part of the money then due him under their oral or implied agreement Burr was legally justified in ceasing work and suing for the value of the work and materials already furnished. Porter v. Arrowhead Reservoir Co., 100 Cal. 500, 35 P. 146; San Francisco Bridge Co. v. Dumbarton Land & Improvement Co., 119 Cal. 272, 51 P. 335; Laiblin v. San Joaquin Agricultural Corp., 60 Cal.App. 516, 213 P. 529; Big Boy Drilling Corp., Ltd. v. Etheridge, 44 Cal.App.2d 114, 119, 111 P.2d 953.

Defendants do not question this rule of law but argue that it is inapplicable to this case: (1) Because under the written contract extra work (of which there was admittedly considerable) could only be charged for where contracted for in writing signed by DuPuy; (2) because under the written contract DuPuy was entitled to retain an amount sufficient to meet any claims against the work by subcontractors, laborers or materialmen; and (3) because under the written contract Burr was not entitled to cease work until 10 days after default in any payment and then only after giving 5 days' written notice. These points all assume and depend on the existence of the written contract. The finding of the trial court that the proposed written contract was never entered into destroys their major premise. Burr was not bound by any of these provisions of the proposed but legally unexecuted contract and the arguments predicated thereon are left without factual foundation.

The second point relied upon by defendants depends upon the following facts: F. A. Dailey was Burr's foreman on the job. On the witness stand he testified that he had a written contract with Burr. Upon defendants' demand this writing was produced but was not introduced into evidence on the trial of action. At a later stage of the trial it was stipulated that Dailey should be added as a party plaintiff and Alta Electric and Mechanical Company, Inc., should be added as a party defendant, without any amendment to the pleadings. This was done by formal written order of the court. The judgment as entered, however, runs only in favor of Burr, and defendants point to no evidence in the reporter's transcript which would support a judgment in favor of Dailey.

After judgment had been ordered by the court defendants for the first time raised the point that Dailey was a party to the contract between Burr and DuPuy and that Dailey had no contractor's license and Dailey and Burr had no joint license. This point was apparently made by motion to dismiss the action on that ground and also by motion for leave to reopen the case so as to set up that defense by amendment to the answer and to produce evidence in support thereof. These matters appear in the clerk's transcript only and in the following fashion: There are set out therein a “notice of motion to dismiss proceedings” and a “notice of motion to reopen case” and what purports to be affidavits and counter–affidavits. Attached to a purported affidavit of Courtney L. Moore is a purported copy of the agreement between Dailey and Burr which is alleged to be the agreement under which Dailey was acting on the job in question.

On the record so presented we cannot consider the matters attempted to be presented on this appeal. The record in the first place nowhere shows that either motion was ever made or presented to the court. But assuming that they were made and that a general order which appears in the reporter's transcript under date of March 22, 1941, reading: “The court further orders that all motions be and the same are hereby denied” was a denial of these motions, there is still no record before us from which we can tell what evidence was or may have been presented to the trial court in support of or in opposition to the granting of either motion. No rule is better settled than the one that only the trial judge can certify on appeal the evidence which was presented to him upon either a trial or the hearing of a motion. Purported affidavits appearing in the clerk's transcript and certified only by the clerk cannot be considered by an appellate court. Strumberger v. Hall, 5 Cal.2d 22, 52 P.2d 917; Jeffords v. Young, 197 Cal. 224, 239 P. 1054; Egan v. Bishop, 8 Cal.App.2d 119, 47 P.2d 500; 2 Cal.Jur. 526.

In the absence of a proper record affirmatively showing otherwise we must assume any state of facts which will support the action of the trial court. Ward v. Ward, 15 Cal.2d 234, 237, 100 P.2d 773. Thus we are entitled to assume on the record before us either that the motions were never presented to the trial court, or that if presented the evidence then produced before the trial court justified their denial.

The same matter was again presented on motion for new trial as appears from the reporter's transcript certified by the judge who tried the case. The motion for new trial was supported by an affidavit reciting among other matters that the fact that Dailey did not have a contractor's license was first discovered on February 26, 1941. The record shows that the findings and judgment were not signed and filed until March 22, 1941. Since we are entitled to assume on the record here presented either that no motion to reopen the case was presented to the court, or that if presented the evidence then before the court was sufficient to justify its denial, the presentation of this affidavit in support of their motion for new trial cannot benefit defendants on this appeal. If no motion to reopen was made during the period between February 26 and March 22, 1941, defendants could not rely upon the ground of newly discovered evidence in support of their motion for new trial. Rockwell v. Italian–Swiss Colony, 10 Cal.App. 633, 637, 103 P. 162. If the motion was made and denied, the assumption that its denial was based on sufficient evidence would preclude the defendants from questioning the action of the trial court in denying their motion for new trial on this ground.

The plaintiff's appeal presents the question of the sufficiency of the evidence to justify two deductions by way of off–sets from the amount of his judgment.

The first is an item of $481.38. Sheerin, a witness for defendants, testified that DuPuy was required by the District Engineer to pay this amount for damage to certain conduit pipes and cable which were damaged by a tractor running over them. He further testified that Farish, a subcontractor under plaintiff, had tractors on the job at the time. Dailey while denying knowledge of the cause of this damage testified that a tractor would have to run over this conduit to get in and out of the tunnel. It is claimed that this item is excessive on its face, that there was no proof that it was for the reasonable value of the repairs, no proof that the damage was caused by plaintiff's negligence and that the owner of the material damaged was guilty of contributory negligence.

In the trial of the case, extending over a period of many days and involving testimony concerning many dozens of items, the evidence at times, as in this instance, was undoubtedly sketchy. On the cross–examination of defendants' witness no inquiry was made as to the reasonableness of this particular item; the witness testified that DuPuy paid the amount and its reasonableness was apparently not questioned at the time. We think that the trial judge was justified in drawing an inference from the testimony that the conduit was damaged by the negligent operation of one of the tractors operated by Burr's subcontractor (there was no evidence of any other tractors operating on the job at that particular time) and that contributory negligence of the owner of the conduit was not proved.

The $2,140 item represents an amount paid to Farish, Burr's subcontractor, for hauling dirt. Sheerin, defendants' witness, testified that this represented 2,140 yards of dirt at $1.00 per yard hauled from the trenches in the tunnel. Dailey testified for plaintiff that none of this dirt was hauled out of the tunnel. This conflict was resolved by the trial court in favor of defendants. Plaintiff makes the further claim that in any event the full amount paid Farish by DuPuy, including this $2,140, was already once deducted from plaintiff's claim in arriving at the judgment and that in deducting it a second time the court was duplicating the off–set. The unit prices under which Burr was working provided $1 per foot for digging this trench, which would include hauling the material away if necessary. The full charge was made by plaintiff for this work and included in the judgment. It is thus clear that the $2,140 was a partial payment on account of this $1 per foot of excavation and hence properly deducted.

Plaintiff quotes section 2 of the Public Works Act: (Deering's Gen.Laws, Act 6423) “Upon the trial of any such action, the court shall award to the prevailing party a reasonable attorney's fee, to be taxed as costs, and to be included in the judgment therein rendered.”

An attorney's fee was included in the judgment. Plaintiff asks for an additional attorney's fee on appeal. The language of the section, “upon the trial,” clearly limits the attorney's fee to the trial, and we find no warrant therein for the allowance of a further fee on appeal. No California case in point has been cited or found by us but the Supreme Court of Oklahoma in National Credit Co. v. Franklin, 177 Okl. 417, 60 P.2d 744, reached a similar conclusion on a statute apparently not so clearly limiting the fee to the trial of the action as ours.

The judgment is affirmed on both appeals.

DOOLING, Justice pro tem.

NOURSE, P. J., and STURTEVANT, J., concurred.