STEVENSON v. SAN DIEGO COUNTY

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District Court of Appeal, Fourth District, California.

STEVENSON v. SAN DIEGO COUNTY.

Civ. 3350.

Decided: October 27, 1944

Thomas Whelan, Dist. Atty., Carroll H. Smith, Deputy Dist. Atty., and Frank T. Dunn, Asst. Dist. Atty., all of San Diego, for appellant. George H. Stone and Monroe & McInnis, all of San Diego, for respondent.

This is an appeal from a judgment for $21,539.10 which plaintiff recovered for services as an architect rendered to the County of San Diego under two written contracts, one dated February 15, 1937, and the other dated January 20, 1939.

Under the earlier contract defendant employed plaintiff to prepare preliminary plans and estimates, and working plans and specifications for the erection of a group of buildings for a County Tuberculosis Sanitarium on the site of the Vauclain Home in the city of San Diego, and to superintend construction thereof for a fee of eight per cent of the costs of the buildings. The Vauclain Home was a part of the County Hospital but occupied ground separate from the main group of buildings.

It was provided that when the preliminary studies for the construction of the buildings, and preliminary estimates of cost were prepared they should be submitted to the Board of Supervisors; that when they were approved either by signatures of a majority of the Board of Supervisors or by a resolution passed by the Board, plaintiff would be entitled to receive 1 1/2% of the estimated cost of the buildings. Other progress payments were provided for which do not affect the case. It was also provided that should the work or any part of it be abandoned the architect should be paid the amount of the progress payments earned up to the time of such abandonment. We will refer to the work done under this contract as the “Vauclain Home” project.

Under the contract of January 20, 1939, defendant employed plaintiff to do similar work in connection with the erection of additions to and alterations of the San Diego County Hospital in the city of San Diego. The two contracts were practically identical in form except that in the second the architect's fee was set at 10% of the cost of construction and alteration. The initial payment was fixed at 2 1/2% of the estimated cost and progress payments in other percentages. We will refer to the work done under this contract as the “County Hospital” project.

At the time of entering into both contracts it was contemplated that they would be partly financed under federal grants, the federal government contributing 55% of the cost and the County of San Diego the balance of 45%. Before beginning the construction of the improvements in question here, the Lanham Act, Title 42, Chapter 9, subchapter III, sec. 1531 et seq. U.S.C.A. was passed which authorized the federal government to pay the total cost of such improvements. The financing of the improvements now under consideration was planned under the terms of that act.

Prior to the passage of the Lanham Act plaintiff proceeded to perform his obligations under the first contract. It was then proposed to erect three buildings at the Vauclain Home. He prepared plans and specifications for them. Two of them were built and plaintiff was paid his fees in instalments totaling $19,706.04, the final instalment being paid on December 20, 1939. Nothing further was done concerning additional construction on the Vauclain Home project until well into 1941.

Plaintiff prepared four sets of preliminary plans and studies for the County Hospital project. Three of these were never presented to the Supervisors but the fourth was presented and approved early in 1939. No contracts were let and on March 27, 1939, plaintiff was paid $600 in settlement of his claims for these services under his contract. Between that date and July 14, 1941, plaintiff prepared additional sets of plans for the projects, none of which were presented to the Supervisors prior to July 14, 1941.

On July 14, 1941, the Board of Supervisors passed its Resolution Number 80 directing that an application be made to the Federal Works Agency, Public Works Administration, for assistance in remodeling old buildings and construction of new units for the County Hospital and Vauclain Home, made necessary by activities of the National Defense Program in San Diego. This resolution contained the following:

“Be it further resolved that the Clerk of this Board be and is hereby authorized and directed to prepare and file said application on behalf of this Board, and that the District Attorney, County Auditor and Controller, E. L. Freeland, Structural Engineer, and Architect F. W. Stevenson, be and they are hereby authorized and directed to furnish the necessary data and information required in said application, and to assist the Clerk in the preparation and filing of the same, the services of the said E. L. Freeland and the said F. W. Stevenson in this matter to be without charge to the County.”

Plaintiff testified that the preliminary plans and estimates had been prepared by him prior to July 14, 1941; that “outside of minor changes and a few things that we added, you know, but they were substantially all prepared. The main buildings were all done before that time.” He also testified that he and Mr. Freeland assembled the required data and information and made the necessary estimates therefor from the plans already prepared, subject to changes made necessary to comply with government requirements.

This data and information, after being compiled, was placed on the form of application furnished by the government or attached thereto as exhibits. Copies of the preliminary drawings which had been prepared before, as modified, were also attached to the application.

The application, with all of the exhibits, was presented to the Board of Supervisors and was approved by formal resolutions passed on August 11 and 15, 1941. This included approval of the preliminary plans and estimates with a description of the character of the work and materials to be used.

If we understand the evidence correctly the plans called for four new buildings and the remodeling of two of the existing buildings in the County Hospital project, remodeling the boiler plant there, and for three new buildings in the Vauclain Home project at a total estimated cost of $1,057,643.59, including equipment in both projects.

The federal authorities approved the construction of the two new buildings and the remodeling of two buildings in the County Hospital project, disapproved the other proposed construction there, and disapproved all the proposed construction in the Vauclain Home project. $620,000 was appropriated for the new construction, and $60,500 for the remodeling in the County Hospital project, with added appropriations for equipment which need not be further noted.

The new construction was all done under federal contract and the County of San Diego had no connection with that part of the improvement. The remodeling was done through contracts let by the County of San Diego which had complete charge of that portion of the improvement.

By a contract with plaintiff dated February 10, 1942, the federal authorities employed him to act as architect on the new construction at a fixed fee of $29,760 which was paid him. Plaintiff testified that the preliminary plans and estimates which he prepared under his second contract with the County of San Diego, were used, with slight modifications, as the preliminary plans and estimates under his contract with the government and furnished the basis for the final plans and specifications used for the new construction erected by the government.

Sometime between August 15, 1941, and the fall of 1942, differences arose between plaintiff and defendant and defendant terminated its two contracts with plaintiff and refused to permit him to act as architect for the work of remodeling the two buildings in the County Hospital project for which work the federal government had granted San Diego County $60,500. This money was expended under the supervision of another architect. The other proposed work in the County Hospital project, the construction of two new buildings and remodeling the boiler house, was abandoned, and as far as we are advised has not been revived. The construction of the three proposed buildings in the Vauclain Home project was abandoned, although there is some evidence in the record indicating that one building may have been constructed of entirely different design and of cheaper construction than any of those shown on the plans prepared by plaintiff.

It is the theory of plaintiff, which was adopted by the trial court in its important particulars, that the various portions of the work contemplated in the two contracts between plaintiff and defendant were divisible so that plaintiff became entitled to payment of the initial payments specified on the approval of preliminary plans and estimates by the Board of Supervisors; that upon formal approval of such plans and estimates on August 11, and 15, 1941, plaintiff became entitled to payment of the following sums: $15,500, being 2 1/2% of $620,000, the cost of construction of the two new buildings in the County Hospital project; $1,512.20, being 2 1/2% of $60,500, the cost of remodeling the two old buildings in the County Hospital project; $1,361.25, being the profit he would have made in other proposed new buildings and remodeling the boiler plant in the County Hospital project had defendant not cancelled plaintiff's contract of January 20, 1939; $3,165.35, for his approved preliminary plans and estimates of the proposed buildings in the Vauclain Home project. Judgment was rendered in favor of plaintiff in the sum of $21,539.10, being the total of the foregoing amounts.

As its principal defense defendant argued that the portion of the resolution of July 14, 1941, already quoted, which directed plaintiff and E. L. Freeland “to furnish the necessary data and information” for the application for funds to finance the proposed projects, and provided that their “services in this matter to be without charge to the County” was a modification of plaintiff's two contracts with the County so that he was entitled to no compensation for any of the services rendered by him to the County. It is urged that the language of the resolution was clear and unambiguous so that it was not subject to construction by the trial court.

We may concede the clearness and lack of ambiguity of the resolution without being able to reverse the judgment on the ground urged. The contracts which the resolution is claimed to have modified, must be considered with the resolution of July 14, 1941, to determine if their combined terms were clear and unambiguous so as to prohibit interpretation by the trial court. Under the contracts plaintiff was employed to render professional services to “consist of the necessary conferences; the preparation of preliminary studies, working drawings; specifications, large scale and full size detail drawings; * *” for the projects. The contracts also provided that upon the completion of the preliminary studies of the new buildings and alterations and their approval by the Supervisors, plaintiff would be entitled to 2 1/2% in one instance and 1 1/2% in the other of the estimated cost of the improvements. When the language of the resolution is considered in connection with the language of the contracts it becomes uncertain. The resolution only specified that the “necessary data and information” for the application for funds be furnished free of charge. This might easily refer to a small part of the work required of plaintiff in the contracts. The trial court concluded that the data and information mentioned in the resolution was not the same as the preliminary work described in the contracts. This is supported by the evidence of plaintiff who testified that the resolution required the assembling of the data for the application from the plans and estimates already prepared. As the language of the resolution when considered in connection with that of the two contracts, is uncertain, the trial court was authorized to construe it. We cannot say that the construction placed upon such language by the trial court is unreasonable so we cannot hold the findings on that question unsupported by the evidence. See, Evans v. Citizens National Trust & Savings Bank, 29 Cal.App.2d 133, 84 P.2d 218; Kautz v. Zurich, etc., Co., 212 Cal. 576, 300 P. 34; Adams v. Petroleum Midway Co., Ltd., 205 Cal. 221, 270 P. 668.

Defendant argues that the action is for damages for breach of contract; that if plaintiff was entitled to recover at all he could recover nothing more than his prospective profits instead of the full amount of the earned percentages which he was awarded except in the one instance already noted.

We cannot agree with defendant that the action is for damages for breach of contract. In both contracts plaintiff was employed to perform certain services for defendant. They provided that he was entitled to receive progress payments as the work progressed. Defendant was given the right to abandon the work or any portion of it at any time. On such abandonment it agreed to pay plaintiff the compensation earned up to the time of abandonment. Two and one–half per cent of the estimated cost of construction and remodeling in the County Hospital project, and one and one–half per cent of the estimated cost of construction in the Vauclain Home project became due and payable to plaintiff on the approval of the preliminary plans and estimates. They were approved by the resolutions of August 11 and 15, 1941. Under the contracts those resolutions fixed plaintiff's right of recovery at that time, although portions of the proposed work was thereafter abandoned and plaintiff was prevented from performing his contract for remodeling the two buildings in the County Hospital project. Thus the action is on the contracts and not for damages for their breach.

The foregoing is true, with the possible exception of his fee for the proposed new buildings not constructed and remodeling the boiler plant in the County Hospital project. By common consent of the parties this seems to have been treated as an action for damages for breach of that portion of the contract and the judgment on this particular item is based on that theory. Defendant does not question this portion of the judgment if it be finally decided that plaintiff is entitled to recover at all.

There remains one important phase of the case to be considered, namely, that portion of the judgment awarding plaintiff $15,500 for the preliminary plans and estimates for the two new buildings in the County Hospital project, which were not built by the County but by the federal government under contracts let by it. On this phase of the case the trial court found:

“That it is true that pursuant to the laws rules and regulations governing the grant by the Federal Government it pays all costs involved in the construction of the building, as alleged in said paragraph, except that under said contracts the fees and costs for the preparation of preliminary plans and studies are not paid by the Federal Government; that the contract executed by plaintiff on February 10, 1942, and referred to in said paragraph IV, did not include any compensation for the preparation of preliminary plans and studies, or for the services sued for in this action, and the payment of twenty–nine thousand seven hundred sixty dollars ($29,760.00) received by plaintiff as alleged in said paragraph IV did not include any compensation for the services performed by plaintiff and sued for herein; * * *”

This finding is contrary to the documentary evidence of plaintiff. There is no evidence supporting it. Plaintiff's contract with the government contained the following:

“Article 2. Scope of contract.––The Architect shall perform all of the professional services necessary for the development of the Project to the satisfaction of the Commissioner or his duly authorized representative, including the following:

“(a) Preliminary Documents.––The preliminary documents shall include a site plan showing the location of each structure and other physical improvements, roads, walks, playground areas, and general grades related to the topography of the site; floor plans and elevations of each structure and other drawings sufficient to illustrate the intent and scope of the improvement; outline specifications in sufficient detail to indicate type of construction, kinds of material and finishes, and proposed electrical, plumbing, heating and ventilating systems; and a detailed estimate of the construction cost of the project including structures, * * *

“(b) Working Drawings and Specifications.––After the preliminary drawings have been approved in writing by the Commissioner and the Architect instructed in writing to proceed with working drawings and specifications for the project * * *,” he was required to furnish the working plans and specifications. No supervision of construction was contemplated as required in the County contracts.

It would therefore seem that the preliminary drawings and estimates prepared by plaintiff under his contract with the County prior to July 14, 1941, practically constituted the preliminary documents required to be furnished by him under his federal contract and were paid for by the federal government in its payment of $29,760. That plaintiff so regarded the transaction is evident from the following testimony:

“Q. While we are on the subject, the payments for these working drawings was made by the United States Government? A. Yes.”

It is true that plaintiff used the plans and estimates prepared under his contract with the County of San Diego, but this does not change the fact that when he signed the contract with the federal government it became his duty to furnish such preliminary plans and estimates as part consideration for the fee finally paid him. Thus he was paid a fee by the federal government for this work and, if this portion of the judgment be allowed to stand, he will be paid another fee for the same services by the County of San Diego.

The contract of January 20, 1939, between plaintiff and defendant contemplated the construction of new buildings by the County of San Diego on the site of the County Hospital. In this contract the County of San Diego was the owner and plaintiff the architect. The buildings were to be constructed by the owner for its use. Originally it was contemplated that the funds for the improvement would be furnished, 55% by the federal government, and 45% by the County of San Diego. The passage of the Lanham Act changed the situation entirely. All the money would then be furnished by the federal government which would let all the contracts for the new construction, employ and pay the architect, and pay all of the construction bills. Both parties now before us were fully advised as to these facts and both agreed to them. The consent of the County is evidenced by the application for funds filed with the federal authorities. The consent of plaintiff is evidenced by his assistance in preparing this application and his signature on the contract by which he was employed by the federal government as architect on the project at a fixed fee to be paid by it. Thus the parties to this action voluntarily placed themselves in a position where performance of the portion of the original contract between them relating to the construction of the two new buildings in the County Hospital project was impossible of performance. The County of San Diego could not build those buildings because they were built by the federal government. Plaintiff could not act as architect for the County of San Diego because the buildings were not erected by the County but by the federal government with plaintiff acting as architect on the project. It is quite evident that plaintiff and defendant by mutual consent abandoned that portion of their contract relating to the construction of the two new buildings in the County Hospital project by making performance of that portion of their contract impossible and by substituting an entirely different contract therefor. Thompson v. Municipal Bond Co., 23 Cal.App.2d 402, 73 P.2d 274; Lohn v. Fletcher Oil Co., Inc., 38 Cal.App.2d 26, 100 P.2d 505. The federal government acted for the benefit of the County of San Diego in erecting the new buildings and plaintiff cannot demand payment twice for the same work after having consented in writing to look to the federal government for his compensation and after having accepted the full contract price for his services.

The judgment for $21,539.10 is reduced by $15,500 to $6,039.10, and as so reduced is affirmed.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.