JONES v. POLLOCK

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District Court of Appeal, Second District, Division 1, California.

JONES v. POLLOCK et ux.

Civ. 16984.

Decided: August 04, 1949

Bruce Mason, Long Beach, for appellant. Raymond J. Kirkpatrick, Moses E. Lewis, Jr., Long Beach, for respondents.

Plaintiff is a building contractor. Defendants, husband and wife, own a lot upon which the plaintiff built a dwelling house and garage. The work was done under the terms of a written agreement between the parties.

The actual cost of the house and garage, expended by the plaintiff builder, was $20,421.87. This sum defendants refused to pay. Plaintiff brought his action to foreclose a mechanic's lien upon the lot, and in a separate count, for the value of work, labor, and materials furnished to the defendants.

After several days of testimony the trial court found that the agreement limited the cost of the improvements to $13,100 and that defendants had paid $10,480 on account. Then the trial court also found that the plaintiff had performed services and provided materials in addition to the contract price, amounting to $1,763.52. And then the court rendered judgment for the plaintiff for $1,951.79.

Plaintiff appeals, contending that the judgment should have been for his total cost, plus 15% commission agreed upon in the contract and minus $10,480 paid on accousnt, amounting to $13,027.

We have, therefore, three propositions to consider: First, was the plaintiff's recovery under the contract limited to $13,100; secondly, could the trial court award plaintiff anything additional to the contract price for ‘extras'; and, thirdly, does the evidence support the findings, and do the findings support the judgment.

1. The language of the contract relative to the first proposition is as follows: ‘1. That said Contractor agrees for the consideration hereinafter named to furnish the necessary labor and materials, including tools, implements and appliances, required, and to perform and complete according to this agreement, and the plans and specifications, the buildings described, in a good workmanlike and substantial manner, and within the estimated cost of $13,100 and the contractor shall receive for his services 15% of cost of construction which is included in estimated cost.’

Later on in the contract, with respect to the same subject matter, appears the following: ‘* * * That the cost of the construction of said building as made in conformity with said plans and specifications shall be understood as an estimate only by the contractor, who, in no way shall be responsible for the fluctuation of prices of labor or materials.’

Webster's New International Dictionary, Second Edition, defines ‘within’ as follows: ‘4. Under that number or amount.’ ‘Within’ means not beyond. French v. Powell, 135 Cal. 636, 68 P. 92; Battersby v. Shepeard, 89 Cal.App. 756, 265 P. 506.

Assuming that the second sentence above quoted from the contract made it ambiguous in this respect, a finding of a trial court either way, based upon evidence before it, will not be disturbed by a court of review. Where parol evidence is introduced in aid of the interpretation of a contract, and conflicting inferences may be drawn therefrom the appellate court will adhere to the interpretation of the contract adopted by the trial court. In re Estate of Rule, 25 Cal.2d 1, 152 P.2d 1003, 155 A.L.R. 1319; Reid v. Johnson, 85 Cal.App.2d 112, 192 P.2d 106; Lori, Ltd., v. Wolfe, 85 Cal.App.2d 54, 192 P.2d 112; Taylor v. J. B. Hill Co., 31 Cal.2d 373, 189 P.2d 258.

2. With reference to ‘extras,’ the contract provided: ‘* * * No alterations or deviations from plans or specifications shall be had or done without written consent of the owner and the increase or extra charge therefor agreed to.’

The contractor went ahead and added a number of extras to the house and garage as originally planned—all without any written agreement therefor. He testified that he was run ragged by the lady defendant, who came on the job early and late almost every day, and time and again had to have this done or that changed. For instance, the house was to be a duplicate of one in which the defendants were then living and which they liked very much. The first thing that happened was the discovery that drainage problems on the new lot caused by duplicating the old house plans required extensive excavations and filling. Then, among other things, the new house was made a foot larger in at least one dimension; there had to be a cathedral ceiling in the living room, extra courses of shingles were put on to enhance the appearance of the structure; a basement for the furnace was excavated and lined with concrete, due to change in the plans for heating the house, and, for looks, and extra gable was built on the garage. These changes materially added to the cost of construction. And there was a decided increase in the cost of material as the building progressed. The defendants testified that most of the changes in the plans were agreed upon when the contract was made and were included within its terms.

Whether or not the contractor is entitled to an extra depends upon whether or not the work and material claimed as an extra is included in the contract. Bowman v. Maryland Casualty Co., 88 Cal.App. 481, 263 P. 826. And where work is done beyond what was originally contemplated by the parties, it is an extra, outside the scope of the contract, and may be recovered as such. 12 Am.Jur. 879.

3. Regardless of what has been said relative to the two foregoing propositions, the findings and the judgment are so hopelessly at variance with each other and with the evidence in the case that a new trial becomes essential. The plaintiff was entitled in any event to $13,100 under the contract. The judgment gives him $1,951.79. This latter sum, together with $10,480 paid on account by the defendants amounts to $12,431.79—considerably less than what the contractor was entitled to, eliminating consideration of extras entirely. Then the findings are that the contractor furnished extras not called for by the contract, amounting to $1,763.50, but the judgment gives him nothing for these.

We think the procedure more likely to result in impartial justice as to these parties is to have the case go back to the Superior Court for a new trial in order that the court may determine all of the issues.

The judgment is reversed.

DRAPEAUK, Justice.

WHITE, P. J., and DORAN, J., concur.

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