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District Court of Appeal, Second District, Division 3, California.

L. C. BOHMAN, doing business under the fictitious firm name and style of C. Bohman & Son, Plaintiff and Respondent, v. Phil BERG, Defendant and Appellant.*

Civ. 24013.

Decided: May 23, 1960

Gang, Kopp & Tyre; Martin Gang, Payson Wolff, Los Angeles, for appellant. Curran, Golden & McDevitt and Robert O. Curran, San Diego, for respondent.

The defendant acquired a new General Motors bus with the purpose of having it converted into a ‘land yacht’. He wrote the plaintiff a letter, the terms to be noted in part later, in which he outlined what was to be done; expressed a willingness to pay certain sums per hour for named types of labor, plus a charge of 10% ‘on all outside labor and materiel.’ The total was not to exceed $25,000. The plaintiff indicated on the letter his approval and acceptance of its terms, and entered upon the task of making a luxury motor home out of the bus. After the defendant had paid the plaintiff over $31,000 he called a halt on further payments and this action was commenced, resulting in a judgment awarding the plaintiff the further sum of $14,184.70 together with interest amounting to $3,735.04. The theory on which the judgment was based was that the ‘contract’ the parties thought they had entered into was too indefinite to be a contract; that, instead, plaintiff was entitled to succeed on his quantum meruit cause of action. We are affirming the judgment.

We do well, at the beginning, to read the signs that direct the paths we should take. The subject matter of the contract does not bring it within the Statute of Frauds (section 1624, Civil Code and section 1973, Code of Civil Procedure), so that legally it could be partly written and partly oral, (Griffith v. Bucknam, 1947, 81 Cal.App.2d 454, 458, 184 P.2d 179, 182.) While ordinarily ‘The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the negotiations and stipulations concerning its matter which preceded or accompanied the execution of the instrument’ (section 1625, Civil Code), this declaration does not serve to eliminate from consideration, in its interpretation, writings and plans sufficiently incorporated into a contract by reference, express or implied (Civil Code, § 1647; Miller v. Brown, 1955, 136 Cal.App.2d 763, 776, 289 P.2d 572, 580), nor to make improper the consideration of prior negotiations that serve to illumine such terms of the writing as are uncertain (section 1647, Civil Code and sections 1856 and 1860, Code of Civil Procedure; Miller v. Brown, supra). The prior negotiations, however, may not be made use of to add a term not in the writing, but only to make understandable the terms that are there. Television Arts Productions, Inc. v. Jerry Fairbanks, Inc., 1958, 164 Cal.App.2d 842, 848, 331 P.2d 117, 119.

The conclusion that there was no meeting of the minds, because some, at least, of the important terms were not agreed to, is not to be readily reached, but avoided, if possible. Roy v. Salisbury, 1942, 21 Cal.2d 176, 184, 130 P.2d 706, 710. An illustration of how far the courts will go to discover certainty in an agreement is found in Bettancourt v. Gilroy Theatre Co., Inc., 1953, 120 Cal.App.2d 364, 261 P.2d 351, 352, where the promise “The buyers are to erect a First class Theatre * * * as soon as materials, equipments and furnishings are available; at reasonable prices” was held to be sufficiently certain. Here, however, the person to whom the promise was made was not to own or have use of the theatre, but was only interested in having it built because it would enhance the value of his remaining real estate. No one would seriously contend, surely, that an agreement to build a theatre for a fixed price, nothing being specified about it other than that it was to be first class, would be sufficiently definite to constitute a contract binding on either the owner or the builder.

Our consideration of the facts of our case begins with the letter written by the defendant to the plaintiff under date of April 12, 1954, which, by plaintiff's acceptance on April 19th, became the written contract between the parties—if there ever was one. The introductory paragraph of the letter reads: ‘I have purchased a General Motors Model 4104 Intercity Bus which I wish you to remodel as follows, pursuant to the conditions stated below:’ Then follow four divisions: ‘A. Alterations On Structure; B. The Following Items Are To Be Purchased And Installed By You; C. Work Not Specified On Prints To Be Furnished And Installed By C. Bohman And Son; and, D. General Conditions.’ Each of these divisions contained a number of subdivisions. We shall note later those under division B. These are the provisions under ‘D. General Conditions':

‘1. All of the foregoing will be built both as to appearance and workmanship in the best possible manner under the following terms:

‘a. There will be a charge of $4.00 per hour for all metal men.

‘b. There will be a charge of $4.65 per hour for all cabinet men.

‘c. There will be an additional charge of 10% above cost on all outside labor and material. All outside labor will be classified as materiel. * * *

‘2. You agree to install, construct and/or assemble the aforesaid modifications to this bus on the above cost-plus basis for a total cost to me of not in excess of Twenty-Five Thousand ($25,000.00) Dollars, State Sales Tax not included. * * *

‘4. You are to bill me for the balance as the work progresses on the 1st and 16th of each month for all hours worked and materiel to the nearest weekly period.

‘6. You agree to complete all of the above remodeling work during the period of four months.’

The work began in May, 1954, and the bus, converted into a land yacht, was driven away by the defendant in March, 1955. The bills rendered to the defendant, up to the middle of December, were paid, and then the defendant learned that the $25,000 figure was to be exceeded by some $7,000, which he agreed to pay. When he was advised by the plaintiff in March after he had received delivery, that the total would exceed that figure by some $14,000 he refused to make any further payments.

It will guide us in our references to the evidence if we have two of the trial court's formal Findings before us:


‘That the reasonable value of the work, labor and services so performed and of the materials so furnished to defendant at the time they were rendered and at the time defendant promised to pay therefor was $46,004.75. No part of said sum has been paid, except $31,820.05 and the balance in the sum of $14,184.70 became due and payable on March 4, 1955 and remains due, owing and unpaid from defendant to plaintiff.


‘That any purported oral or written agreement asserted by defendant to have been made prior to April 19, 1954 was incomplete, indefinite and uncertain so that there was never any agreement or meeting of the minds of the parties with respect to the proper methods, materials and workmanship to be used in order to convert the General Motors bus into the land yacht desired by defendant, and that the same were incapable of ascertainment; that the work proposed to be done by the parties was largely novel and pioneering in nature; that the provisions of any letter or the plans and drawings referred to therein, together with the conversations of the parties prior to April 19, 1954, were wholly inadequate to call for the work which was done by plaintiff, and that on April 19, 1954, it was impossible to ascertain just how much work would have to be done by plaintiff or the method by which it would be accomplished.’

The defendant relies upon Mitchel v. Brown, 1941, 43 Cal.App.2d 217, 222, 110 P.2d 456, 458, where we read: ‘When an appeal depends solely upon the construction to be given to the language of a contract, from the instrument itself, the reviewing court is called upon to determine the meaning thereof, as a matter of law. * * *’ We find this principle to be well established. Continental Cas. Co. v Phoenix Construction Co., 1956, 46 Cal.2d 423, 429–430, 296 P.2d 801, 805, 57 A.L.R.2d 914. This principle, however, is of no help to the defendant. Looking at the letter, the only written agreement between the parties that we have, we find much of it more properly characterized as an index to, than as the text of, a contract. To demonstrate our point we set forth the contents of division B:

‘B. The Following Items Are To Be Purchased And Installed By You:

‘1. 10 KW Generator as specified by me.

‘2. Monel tanks for water, gasoline and oil, approximately as per plan.

‘3. One heavy galvanized sump tank.

‘4. Heat booster.

‘5. Rectifier.

‘6. Converter with trickle charger.

‘7. Electric water heater or heaters approximately 24–30 gallons—Columbia or Rheem or equivalent.

‘8. All tanks to be mounted in hardwood cradles covered with leather.

‘9. Generator to be shock mounted and possibly on tracks with aircract type connections for access.

‘10. All plumbing, fills, drains, gate valves, etc.

‘11. Electric circuit breakers (coordinate 12 and 112 volt circuits), wiring, etc.

‘12. Ultra violet purification light.

‘13. Small 110 volt electric water supply plump [sic]—1 inch.

‘14. Partition spaces in baggage compartment in aluminum to accommodate above items and those specified in Mr. Haines' and Mr. Eichner's blueprints and instructions.

‘15. Install complete stainless steel galley, satin finish, including range, oven, combination day box and freeze, sink with ‘Pat’ type disposal, vent, cabinets, etc.

‘16. Install table in lounge with hydraulics as per drawing.

‘17. Arrange to raise half of bunk in cabin by hydraulics if possible; if not feasible, by counterweight, as per plan.

‘18. Construct step table in cabin as per plan.

‘19. Install two heads as per plan, including ‘Pat’ toilets, enclosed lavatory and shower, both heads in satin finish stainless.

‘20. Purchase and install two Motorola radios. In after radio it is contemplated we will use the same speaker as is used by the television which we will furnish and the controls thereon will be recessed. Forward radio will be ordinary automobile type installation.

‘21. Supply not over two locks for exterior doors of bus, and not more than three locks for certain spaces in the interior.

‘22. Compartment certain lockers to accommodate china, glasses, etc.

‘23. Build additional storage space not on present plans, if in our mutual opinion there is space and this is feasible.’

We see no purpose in belaboring the matter; standing by itself, the letter is beyond dispute too uncertain to be a binding contract. When we come to the oral testimony, with its reference to sketches and conversations, we enter a field where the conclusions of the trial court are binding upon us, for they involve the credibility of witnesses and the weight of the evidence. The trial court was warranted in concluding not only that the letter was insufficient evidence that the parties had ever agreed upon the details of the job that was to be done, but that the finished product was quite different. It appeared that this project was one dear to the defendant's heart; that he checked on the progress of the work twice each week; that many details were not agreed upon by April 19th, and many changes were made from time to time as the work progressed. This was to be expected. The space available in the bus was limited. To house a lounge, sleeping quarters, a complete kitchen, two bathrooms, with toilets and showers, hot and cold running water, compartments for baggage, outdoor furniture, tanks for oil, gasoline, water and sewage, etc. etc. (these are ours), required procedure by trial and error. No single item of expense was large, but they were many, and totalled more than the original guesses.

We find these words, written in a strangely similar, but admittedly not identical situation, in Dodge v. Harbor Boat Bldg. Co., 1950, 99 Cal.App.2d 782, 790, 222 P.2d 697, 701, so aptly sums up the thoughts that we would express in this case, that we quote them: ‘There is implicit in the findings, conclusions, and judgment, a determination by the trial court that the value of the work done by National Ship provided a proper basis for a judgment in its favor and that it was unnecessary to sue on the original contract. This determination was one of fact and has ample support in the record. It is true that National Ship agreed with Harbor Boat to do specific work for an agreed price of $48,390 and that Harbor Boat agreed with the Navy to do the complete job for $149,459.28, but when the work had been completed National Ship had done extra work of the claimed value of $79,592.65 and Harbor Boat had done extra work (including that done by National Ship) of the claimed value of $172,718.70. As we have mentioned, Harbor Boat was paid $141,622 for work over and above its original bid. When it is understood that the entire purpose of the work was to prepare the ships for an inactive status and that the completed job accomplished no more than this, the figures we have quoted are sufficient to demonstrate that the original specifications were incomplete and wholly inadequate to call for the work that was done. Harbor Boat was finally paid almost twice the amount of its bid to the Navy, while National Ship's extra work was largely in excess of the work upon which its bid was predicated. Harbor Boat, as we shall point out, has never claimed, and cannot be heard to claim now, that the Navy did not authorize this extra work. We have examined the record, including numerous exhibits, and are satisfied that the original specifications and directions with respect to the work were altered and supplemented so extensively and in so many material particulars as to render it impossible for the trial court to segregate the work originally agreed to be done by National Ship from the total work that was required to complete the jobs to the satisfaction of the Navy. Harbor Boat's statement of the items which constituted its own and National Ship's increased and decreased costs due to changes in specifications were more than one hundred in number. Changes from the original specifications were given in great detail in the statements of Harbor Boat and National Ship and many witnesses testified with relation to the departures from the original specifications. An analysis of their testimony, found in some 2,500 pages of the reporter's transcript, would be an interminable task, and it will suffice to say that we are bound by the implied finding that there was a sufficient departure from the original specifications to render it appropriate to use the value of National Ship's entire work as a proper basis for fixing its compensation.’

We see no reason to reach a conclusion different in principle from that just noted, because of either Hunter v. Sparling, 1948, 87 Cal.App.2d 711, 725, 197 P.2d 807, 815, or Mason v. Rolando Lumber Co., 1952, 111 Cal.App.2d 79, 243 P.2d 814, 815. It is true, in the first case it was said: ‘An offer too uncertain to create a bilateral contract if accepted, may, by performance by the offeree, create a unilateral contract. 12 Am.Jur. p. 554, § 64.’ and in the latter a similar statement appears: ‘Though an executory contract may be unenforceable because of lack of mutuality or uncertainty that defense is no longer available where the contract has been executed * * *.’ If we thought that the first quotation meant (to fit it to our case), that defendant's offer to pay up to $25,000 for work so inadequately described that the acceptance of the offer would create no enforceable contract, nevertheless became a contract to pay $25,000 (and no more), by plaintiff's performance, we would disagree with it. How can it be said that plaintiff fulfilled the terms of the offer if it was so uncertain that what was offered was not known? Both quotations appear in cases different from ours. Each recognizes that an uncertain beginning does not mean that work done and accepted is to go unrewarded. Under the facts as seen by the trial court, a judgment for the value of the work done and services rendered was properly awarded.

We have considered the contentions and arguments of the appellant respecting rejected evidence. We are not persuaded that prejudicial error was committed.

The judgment is affirmed.

BISHOP, Justice pro tem.

SHINN, P. J., and VALLEÉ, J., concur.