PETER KIEWIT SONS CO v. PASADENA CITY JUNIOR COLLEGE DISTRICT OF LOS ANGELES COUNTY

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

PETER KIEWIT SONS' CO., a corporation, Plaintiff and Respondent, v. PASADENA CITY JUNIOR COLLEGE DISTRICT OF LOS ANGELES COUNTY, Defendant and Appellant.*

Civ. 25204.

Decided: June 13, 1962

Harold W. Kennedy, County Counsel and James W. Briggs, Deputy County Counsel, for appellant. Latham & Watkins, Ira M. Price, II, Los Angeles, for respondent.

Plaintiff company instituted this action against the Pasadena City Junior College District of Los Angeles County for the recovery of $137,637.85 claimed as the balance unpaid on a contract for additions and alterations to the buildings and property of the Pasadena City Junior College. Included were the music building, the stadium building and the swimming pool. The contract price, with certain additions for extra work, amounted to $1,082,047.97. Payments had been made of $944,410.12. Several months before the trial, on or about May 3, 1958, $102,523.61 was paid, leaving a balance of $35,114.24. Included in plaintiff's demand was $600 claimed for extra work for the installation of certain windows, which item was disputed by defendant. Also included in plaintiff's demand and withheld by defendant was the sum of $19,285, being the principal amount of a claim of a subcontractor and the sum of $1,729, which the district was withholding as possible costs of litigation arising out of the claim, notice of which claim had been given to defendant. Plaintiff was obligated to pay certain laboratory costs for which defendant withheld $4,497.24; also withheld was $3,212 for certain painting, $1,120 the cost of finishing grandstand seats, and $6,275 as liquidated damages at $25 per day for failure to complete the contract on time.

The subcontractor's claim was settled during the trial and ceased to be an issue. The claim of $4,497.24 for laboratory costs was reduced by stipulation to $4,224.44. On defendant's claim of $3,212 for painting the court allowed the sum of $685; the claim for $1,120 was denied in toto, as was also the claim of $6,275 for liquidated damages. Plaintiff was awarded $600 extra costs for installation of windows.

When the respective claims of the parties arising out of the contract itself had been adjusted defendant was found to be entitled to offsets consisting of $4,909.44 against the unpaid balance of the contract price. However, the court found that defendant, without justification, had retained $102,523.61 from June 12, 1957 to May 3, 1958, and awarded interest upon that sum in the amount of $6,399.17, and also awarded interest upon the balance due of $30,204.80 from June 12, 1957 to September 24, 1959 (the date of judgment), in the amount of $4,475.34 and thereafter until paid. The total amount of the judgment awarded to plaintiff with interest to date thereof was $41,079.31. Defendant appeals.

The principal question on the appeal is whether the court erred in not allowing defendant liquidated damages. Other points are that no interest should have been awarded plaintiff; the award of $600 with respect to the windows was improper; the court improperly expanded the issues with respect to the withholding by defendant of $19,285; defendant's cross-examination of the architect was unduly limited and certain items of evidence were erroneously received.

First to be examined is the court's denial of defendant's claim to liquidated damages.

The law is well settled that if a construction contract is not completed within the agreed time and the delay is due in part to the fault of the contractor and in part to the fault of the owner, the court will not undertake to apportion the detriment suffered by the respective parties. This rule was declared in Gogo v. Los Angeles etc. Flood Control Dist., 45 Cal.App.2d 334, 114 P.2d 65. The Flood Control District had withheld $12,450 as liquidated damages for delay in the completion of a contract. It was found that the delay was attributable partly to the contractor and partly to the district. In holding that the provision for liquidated damages in favor of the district was for that reason unenforceable, the court spoke as follows: ‘It is finally asserted that in any event plaintiffs are not entitled to recover the entire $12,450 because, discounting the total delay caused by defendant's acts, plaintiffs still did not complete the job within 120 days. In making this contention defendant seeks to have this court apportion the amount of delay attributable to each and to fix damages accordingly. The correct rule is that where such delays are occasioned by the multual fault of the parties the court will not attempt to apportion them but will refuse to enforce the provision for liquidated damages. Jefferson Hotel Co. v. Brumbaugh, 168 F. 867 [94 C.C.A. 279]; Champlain Construction Co. v. O'Brien, 117 F. 271 (C.C.Vt.). It is stated in the Champlain case at page 277 of 117 F.: ‘There is no way for summing up the defaults of each and apportioning the damages to them, but the whole must be allowed or none; and, as all cannot be, none must be. These deductions must therefore be restored.’ By its own act defendant rendered performance within the time limited by the contract impossible and has therefore lost its right to claim the liquidated damages provided in the contract. King Iron Bridge & Mfg. Co. v. City of St. Louis, 43 F. 768, 10 L.R.A. 826 [C.C.Mo.]. It follows that plaintiffs were properly awarded the total amount of liquidated damages withheld by defendant. The judgment is affirmed.' (p. 344–345, 114 P.2d p. 70.)

The holding was not only in accordance with the weight of authority but also has support in sound and convincing reasoning. Excellent statements of those reasons will be found in Jefferson Hotel Co. v. Brumbaugh, 4 Cir., 168 F. 867, cited in Gogo, and in 152 A.L.R. 1349, 1376–1377, where they are summarized as follows: ‘The factors which enter into the progress of a job are so interrelated that usually a delay in respect of one of them will so disturb the whole that its effect in prolonging the project cannot be measured with any reasonable degree of accuracy. The assumption that if, under a building contract, the owner is shown to have interrupted the work for a given number of days, the thing to do is simply to deduct that number of days from the period of overtime, usually involves a fallacy. The length of the interruption may be no measure whatever of the length of the resulting overtime. The sum of several interruptions and prolongations by extras is still less a measure. If the contractor lays off certain workmen they may leave him, or those secured for the remaining work may take other employment; prices may rise; weather may change; his subcontractors may start other jobs; materialmen with whom he has arranged for deliveries may insist on the deliveries or apply the material to more pressing orders; if deliveries are made on the contracts, they may insist on payments, which, under the burden of his accounts and pay rolls, the builder, with the payments on the main contract withheld by the delay, may be unable to finance. To compel him to try out issues based on such complications, with a heavy forfeiture in the balance, and little but opinion evidence available as to their net effect, when the main issue has been forced upon him by the act of the claimant, might be a hardship indeed. Psychologically, there is an inclination to treat the restriction as to time as only for the protection of the contractee, but it is also for the protection of the contractor. He has agreed to devote a certain calendar period to the job, and has made his arrangements accordingly. Simply permitting a transposition of this period for the accommodation of the other party gives little consideration to the possible results in the affairs of the contractor.’

The court made the following findings: ‘VII Plaintiff was delayed and interfered with by defendant in performing said contract from time to time during the progress of plaintiff's work, including but not limited to the following: (a) Delays caused by errors, conflicts and omissions in, and defendant's conflicting interpretations of, plans and specifications prepared by defendant and in plaintiff's having to wait unreasonably long periods upon defendant's Architect and other representatives for interpretations and corrections to said plans and specifications and for additional information required by plaintiff before it could proceed with its work. (b) Delays caused by defendant's changing, revising and altering the work to be performed by plaintiff. (c) Delays caused by plaintiff's having to wait, sometimes for periods up to two (2) months, for defendant to finally approve ‘change orders' and to authorize work thereunder. Plaintiff's completion of said contract was delayed in the aggregate by at least three (3) months by reason of said acts and omissions on the part of defendant. IX In addition, plaintiff's performance and completion of said contract were delayed by other unavoidable causes beyond the control of plaintiff, including but not limited to the following: (a) Delay of approximately seventy-two (72) days in the delivery from the McComber Company in Canton, Ohio, to plaintiff of McComber steel joists, which supplier was specified in defendant's plans and specifications, which delay was caused by a shortage of materials, an impending steel strike, and other causes beyond plaintiff's control. (b) Delay of approximately thirty-seven (37) days in delivery of steel filter tanks for said swimming pool, which delay was caused by a shortage of materials, a steel strike and other causes beyond plaintiff's control. (c) Delay of approximately three (3) weeks in receipt of Ludman windows, which delay was caused by errors in defendant's specifications, by the refusal of defendant's Director of Buildings and Grounds to accept any other window in substitution therefor, and by other causes beyond the control of plaintiff.’

If there was substantial evidence to support the findings that the district was partly responsible for the delay it would necessarily follow that defendant's claim for liquidated damages was properly disallowed.

Defendant says in its reply brief: ‘Appellant concedes that there is substantial (though conflicting) evidence to support the trial court's finding that the district was the cause of some of the delay in completion of the work. Much of the time in the extended trial lasting 15 days (whereas the time estimate was 5 days—Clk's Tr. p. 60) was devoted to attempt by each of the parties to prove that the opposite party was largely or entirely responsible for the delay. However, without conceding the truth of the findings, we do concede that they are not subject to attack on the ground that they are not supported by substantial evidence.’

The contract provided that plaintiff should present written requests for extensions of time within 10 days after the occurrence of the delay. The court found that this requirement was waived by defendant and that it was agreed that plaintiff would proceed with its work after it had been delayed and was not required to make written requests for extensions of time as provided in the contract. This conclusion was based upon findings that plaintiff was requested to proceed with its work under changes made in the plans and specifications without suggesting the necessity of applying for extensions of time; defendant granted some requests for extensions when no request had been made within the 10 day period; defendant represented to plaintiff that if it would proceed with its work, extensions of time would be granted at later dates and also represented to plaintiff that when the work was finished the parties would agree upon a true contract completion date; plaintiff was led to believe that it was not required to make written applications in all cases for extentions of time.

Defendant contends that these facts were insufficient to excuse plaintiff from making written application for extensions of time. We find it unnecessary to extend this opinion by a discussion of this contention. While conceding there was substantial evidence that its own acts and omissions delayed the work for at least three months defendant says: ‘* * * the contractor was and is precluded from relying upon delays allegedly caused by the District where the contractor failed to make a written request for an extension of time within 10 days of the occurrence of such delays. * * *’ It is then contended that findings that plaintiff was not at fault in the matter of requesting extensions of time were without support in the evidence. This argument is made solely in support of the claim for liquidated damages. It has no relevancy to the matter of the delays for which defendant was responsible and hence is not a matter to be considered in application of the rule that the detriment occasioned by delay cannot be apportioned when both parties are at fault. It is irrelevant to the claim for liquidated damages. The failure of plaintiff to justify or excuse its delays in all respects would mean only that it did not complete the work within the agreed time. Its failure to obtain extensions of time, if there was such a failure, would not have excused the faults of the district, and since it was guilty of extensive delays its claim for damages for delay was properly rejected under the rules previously stated.

Defendant assails the allowance of interest upon several grounds. It contends, first, that there was insufficient evidence to justify the finding that the work was completed and accepted on May 8, 1957. It was shown that on May 15, 1957, Mr. Glaser, defendant's Director of Buildings and Grounds, and its representative on the job, wrote a letter to Mr. Ainsworth, the architect, to Mr. Paul, representative of plaintiff, and to others, including the school board, which stated in part: ‘A final inspection was made at Pasadena City College on May 8, 1957 at 2:00 P.M. during which you, District personnel Messrs. Scroggs, Pankow and Carlson were present. It was agreed that the work under our contract No. 1026 dated January 10, 1956, would be accepted by the District as of 5:00 P.M. May 8, 1957, as being essentially complete; however the acceptance is predicated on the completion of all work according to plans, specifications, approved change orders, and other contract documents and doing the necessary work delineated on the correction list.’ An inspector of defendant's, without consultation with the architect, prepared a ‘correction list’ of things to be done pursuant to the letter of Mr. Glaser. The architect agreed with some and disagreed with others. Plaintiff proceeded to comply and by July 31 the demands of the inspector had been complied with except for a few items, the cost of which was well under $1,000; these were completed by August 15th. The architect testified that on May 8 the construction project had been substantially completed by the contractor.

Defendant contends that the contract was not completed until October 3, 1957. Between May 8 and October 3, defendant had proceeded to have painting done at a cost of $3,212 for which, as we have stated, it was allowed a deduction of $685. On December 23, 1957, defendant's governing board adopted a resolution accepting the work as of October 3, 1957. Defendant's selection of the date when its own painting was completed as the date of completion of the contract was arbitrary and unjustified. As early as April 1957, when the parties could not agree whether the painting of underneath portions of the grandstand was covered by the contract, plaintiff offered to do the painting defendant insisted upon, and to submit to arbitration the question of its duty to do the work. Defendant agreed to arbitrate, the arbitration procedure was set up, but defendant refused to go forward unless plaintiff would waive its right to have other matters in controversy settled by arbitration. The attempted arbitration failed.

The claim of defendant for $3,212 for painting had not been settled and defendant, no doubt, had other claims in mind. Plaintiff had been requesting payment. The present action was instituted December 26, 1957. When the matter of the payment of $127,000 was discussed at the board meeting on December 23, Dr. Marsee, assistant secretary of defendant, stated ‘the County Counsel * * * feels that the schools will get more cooperation from the company by withholding the full amount.’ At this meeting Mr. Shatford stated that he had met one of the attorneys for the company and that they would like to be paid $127,000 of the $137,000 due and submit the matter of the balance to arbitration. Mr. Shatford ‘expressed the belief that it would seem foolish to pay interest on $137,000.00 if the schools are liable for the interest, thus he would hope that this be called to the attention of the County Counsel.’

The court was warranted in finding that the contract was completed by May 8. The dispute over the painting was whether plaintiff was required to do all or only a part of the painting underneath the grandstand. It admitted that it was required to paint ‘exposed surfaces,’ in accordance with the specifications. There was disagreement as to what areas were exposed within the meaning of the specifications. On this point the architect had ruled that the contractor must paint some, but not all of the underneath area. The painting in question was not included in the inspector's list of corrections to be made, and was not an item which was include among those which were to be taken care of by the contractor as essential to completion of the work in accordance with Mr. Glaser's letter of acceptance. Everything on the inspector's list which the contractor agreed to complete was completed. If, as the architect determined, and the court found, painting of all the underside of the grandstand was not required under the plans and specifications it follows that it was not necessary to be done by any one in order to complete the job. The painting which the district had done was largely in excess of what was required by the contract. Plaintiff would have painted a portion of the area in accordance with the ruling of the architect, without question, and would have painted all of it if defendant had been willing to submit to arbitration interpretation of the painting specifications. The painting which the district had done under another contract was not a continuation of the work that was covered by the contract so as to extend the date of completion of the work. The minor changes and corrections, which were made promptly by plaintiff, were not of sufficient importance to warrant our interference with the court's finding that the work was completed by the 8th of May. (Fox-Woodsum Lumber Co. v. Fidelity etc. Co., 45 Cal.App. 569, 188 P. 70; Los Angeles City School Dist., etc. v. Tucker, 99 Cal.App. 390, 278 P. 507; Grettenberg v. Collman, 119 Cal.App. 7, 5 P.2d 944.) The corrections were properly treated as trivial by the parties. In view of the fact that this contract for more than a million dollars had been satisfactorily performed by plaintiff, it would have been strange indeed if upon critical examination by inspectors of the owner fault could not have been found in some of the minor details of the work. Defendant does not contend that compliance with the inspector's list of corrections was a condition precedent to its acceptance of the work. Even if it made that contention it would have to concede that acceptance was complete about the 15th of August, when all of the corrections had been made. Mr. Glaser was the authorized representative of defendant. He interpreted the plans and specifications and upon occasions he overruled the architect; he granted or refused extentions of time and his rulings were invariably approved by the board. His letter of acceptance was sent to the board, presumably to Dr. Marsee, the assistant secretary of the board, and no word was sent to plaintiff to the effect that Mr. Glaser's action had not been approved. The delay of the board to take formal action until the following January did not alter the fact that work had been completed by May 8th. The board had a duty to accept the work when it had been completed. (Byson v. City of Los Angeles, 149 Cal.App.2d 469–473, 308 P.2d 765.) Not only was Mr. Glaser's action sufficient as an acceptance of the work, but there was an actual completion, notwithstanding the inconsequential matters that plaintiff agreed to complete or rectify.

The balance of the contract price became payable June 12, 1957, which was 35 days after completion of the contract. At that time defendant presumably intended to claim offsets in some undetermined amount. The amount then claimed by plaintiff, exclusive of $600, for installation of windows, was $137,037.85. There was no excuse for defendant's failure to pay on June 12th at least the amount of the difference between the amount claimed by plaintiff and an amount sufficient to cover any anticipated offsets.

At a meeting on January 7, 1958 the board resolved to pay plaintiff $121,808.61. In disregard of this resolution those who should have respected it resorted to unwarranted devices and made unreasonable demands of plaintiff which are now urged as reasons for withholding payment.

On February 9, 1958 a stop notice was presented by plaintiff's subcontractor for $19,285 and this amount together with offsets already claimed, was withheld by defendant. Interest was also properly allowed upon this sum. The notice came too late. The creditor had the same time under the statute for giving notice that labor and material claimants have for filing liens. Section 1193.1(c), Code of Civil Procedure, limits the time to 90 days after completion of the work. Even under defendant's theory that the work was completed October 3, the notice was not given in time. Defendant makes a futile attempt to show that the statute does not mean what it says. The argument vainly attempts to supplant the provisions of (c) with those of (d), which relate only to conditions which ‘shall be deemed equivalent to a completion,’ in the absence of actual completion.

On January 23, 1958, the county counsel addressed a letter to plaintiff's attorney demanding that plaintiff furnish receipts and releases executed by all laborers and materialmen, and an affidavit of the general contractor that all creditors had been paid, or, in the alternative, that plaintiff furnish a bond to indemnify the district against claims of lien by subcontractors, laborers and materialmen. The time for filing liens had long since expired. And it may be noted that plaintiff had already furnished a labor and material bond in favor of the district in the amount of $535,662.50 and a faithful performance bond in the sum of $1,071,325. The letter of the county counsel referred specifically to the Central Industrial Engineering Company, the subcontractor which later on presented its invalid stop notice. Plaintiff nevertheless furnished receipts in full in the early part of March, but the district still delayed payment until May 3rd, when it paid $102,523.61.

A further contention of defendant is that plaintiff did not make a request for payment on official forms, known as form 6–a of the Division of Architecture for progress reports, until August 13, 1957 and did not present final forms until January 17, 1958. The court found that ‘any delay in completing or filing said application for payment was caused by defendant and not by plaintiff.’ Plaintiff made several demands for payment between June 7, 1957 and December 26, 1957, when it filed its complaint. These demands were refused, but never upon the ground that they were not made upon official forms. Plaintiff's demand on official forms presented August 13, 1957 was refused. The point now made that other demands were not made on official forms was not a valid reason for delaying payment. Defendant had no intention of modifying any of its offsetting claims in order to reach a settlement. Its conduct throughout forced the controversy into court.

Another contention of defendant with respect to the interest is that the amount due plaintiff was unliquidated and that by nonpayment the district could not incur a liability for interest. There is no merit in this contention. Plaintiff was claiming the unpaid balance of the contract price. The district was claiming offsets which, if allowed, would reduce the amount of its debt. The fact that a debtor claims offsets for unliquidated amounts does not impair the creditor's right to receive interest for nonpayment of his debt, the amount of which is certain. In Hansen v. Covell, 218 Cal. 622, 24 P.2d 772, 89 A.L.R. 670, plaintiffs were claiming a balance due under a construction contract; defendants were claiming offsets for defective work and in the cost of completion of the work. After a careful review of the authorities, the court held that the plaintiffs were entitled to interest upon the amount found to be due to them. The facts in our case are substantially the same and the rule there stated is, therefore, controlling. (See, also, Lacy Mfg. Co. v. Gold Crown Mining Co., 52 Cal.App.2d 568, 126 P.2d 644.) The court did not commit error in the allowance of interest.

The next matter to be considered is the claim that defendant's attorney was not permitted to cross-examine Mr. Ainsworth, the architect, as extensively as he had a right to do. In his cross-examination he undertook to uncover some facts that would support his claim that in his testimony respecting his interpretations of the specifications Ainsworth was biased in favor of plaintiff. Mr. Pankow was the manager of the building department of the contractor's Southern California office. On cross-examination Ainsworth was questioned by Mr. Briggs. He was asked whether he had a personal acquaintance with Mr. Pankow and answered that he had no personal or social acquaintance but he knew him as a contractor and had some business dealings with him. He was asked what the nature of the business had been and to this question plaintiff's objection was sustained. Mr. Briggs stated the purpose of the inquiry was to show whether Mr. Ainsworth was biased in his testimony. The court stated that friendship would not necessarily show bias and he gave Mr. Briggs an opportunity to make a showing by way of offer of proof. The witness was then asked whether during the time he was on defendant's job he was on other jobs on which Mr. Pankow was working. Plaintiff's objection to the question was sustained and the matter was not referred to again.

There can be no question of the right of counsel to cross-examine a witness critically with respect to his possible interest or bias. But that does not mean that the matter of cross-examination is not subject to the reasonable control of the court. One purpose of cross-examination for possible bias is to elicit not only facts of which counsel has knowledge, but also any matters that might bear upon the interest of the witness of which counsel has no knowledge. It is a matter within the court's discretion to be exercised liberally in favor of the cross-examiner. The cross-examiner need not make an offer of what he expects to develop in his examination. Mr. Ainsworth had stated that in his work he had had some business dealings with Mr. Pankow. The court thought it was not necessary to inquire further into the nature of the business. The testimony of Mr. Ainsworth consumes some 229 pages of the reporter's transcript, about equally divided between direct and cross-examination. The court had a good opportunity to judge of his credibility and to compare his testimony with that of many other witnesses. The court had heard extensive testimony from Mr. Ainsworth on direct examination. In the briefs of defendant no effort is made to show that Mr. Ainsworth's testimony based upon his interpretations of the specifications exhibited bias or that the interpretations were unfair or unreasonable, but only that his testimony was generally favorable to the contractor. The only complaint appears to be that he did not always rule in favor of the district.

In the opening brief of the district there is a specification of 13 matters in which Ainsworth gave testimony which it is said ‘the trial court must have used.’ In the district's reply brief it is urged that because of the limitation of the cross-examining of Ainsworth ‘this judgment should be reversed as to all matters concerning which he testified set forth at pages 10 to 15 of our opening brief.’ Counsel can scarcely be serious in suggesting such odd procedure. The limitation upon the cross-examination of Mr. Ainsworth was of little consequence. The point in the present case is of minor importance and the ruling, even if it had been erroneous, could not have had any influence upon the result of the trial. It furnishes no reason for disturbing the judgment.

During the trial counsel for plaintiff learned that the district had filed no notice of completion and that plaintiff was, therefore, in a position to deny that its subcontractor's notice to withhold was filed in time. Although this contention had not been asserted in the pretrial proceeding counsel asked that it be made an issue in the trial. Over the objection of defendant the court ruled that the issue would properly be tried. This ruling is assigned as error. There was no error. It was incumbent upon defendant to establish the effectiveness of the notice to withhold in order to justify its retention of the sum of $19,283. That question was clearly within the general issues. All the facts bearing upon the validity of the notice to withhold were before the court uhder the other issues that were tried. Defendant asked for a continuance in order to bring in the surety on the labor and material bond. The motion was properly denied. Defendant had in its possession $19,285 and as to this amount the surety could have been under no conceivable liability.

Over the objection of defendant the court admitted in evidence some 13 communications from plaintiff to defendant. These were all received over the objection of defendant that they should not be received as proof of the facts stated therein. It is now contended that the court probably did consider them for an improper purpose. We deem the objection to be frivolous. There was a good deal of correspondence relevant to the dispute over the windows. Letters pertaining to this matter were properly received. Plaintiff was endeavoring to reach an agreement in that matter. Almost all the other communications related to changes in the work and efforts to reach agreements. Some of the letters called attention to delays that were attributable to various causes, some of them to obstructive tactics of defendant's Mr. Glaser. All of these matters were gone into in the oral proceedings. In view of the many controversies that arose during the work the court properly received the correspondence which was offered for such consideration as it might deserve.

There remains for decision plaintiff's claim of $600 as extra compensation for installing windows other than those specifically provided for in the contract. There was an error in the specifications with respect to the windows, which were to be of the ‘projected type and auto-lok as manufactured by the Ludman Corporation.’ The ‘projected’ type projects outward and inward, while the auto-lok is an awning type, pivots from the ends of the window sash and projects only outward. Accordingly, there is no ‘projected type auto-lok’ window. Plaintiff's subcontractor Skaggs could not buy Ludman windows because of a dealership problem. He was advised by a representative of the architect that Vamco windows would be accepted as the equivalent of Ludman windows and he made a bid on the former of $2,550. Mr. Ainsworth considered the Vamco windows to be satisfactory and recommended that they be accepted, although he did not rule that they were the equal ‘in every respect’ of the Ludman windows, as he should have done if his approval was to be controlling. Thereafter, at the instigation of Mr. Glaser, the District Director of Buildings and Grounds, the architect requested installation of Ludman windows, and these were purchased by plaintiff. The only evidence that has been called to our attention with respect to the extra cost of Ludman windows is the following testimony of Mr. Reeves, plaintiff's assistant district manager: ‘We bought them ourselves on a purchase order for some $2116. Mr. Staggs complained, and we were willing to verify his figures and our own computation that he had approximately $950 in his bid for installation of the Vamco windows and other windows that were required on another contract, so the $950, which we were willing to concede to pay to Mr. Staggs, plus the $2216 we paid, made a sum of $3160. Our contract with Staggs was $2560, which give approximately $600 over our bid estimate.’ Since Skaggs' bid of $950 was not only for installation of the Vamco windows for defendant's building but for other windows on another contract, it is clear that the total amount could not be charged to the installation in the district's buildings.

With respect to this matter and in order to avoid a retrial of the issue, plaintiff will be permitted to consent to a reduction of the judgment by the amount of $600 and any interest upon the same.

We feel called upon to remark that the advice given the board by Mr. Shatford at the meeting of December 23, 1957 should have been heeded. All the matters in controversy, with the possible exception of defendant's claim for liquidated damages, could have been settled under the arbitration procedure for which provision was made in the contract. Even the claim for liquidated damages was asserted in opposition to the settled law which must have been well known to the office of the County Counsel. The trial of the case occupied the time of the trial court for 17 days. Many witnesses were examined and a transcript of the oral proceedings covers 1970 pages. One hundred eighty-three exhibits were received in evidence. The trial was replete with technical objections and contentions. The briefs on appeal comprise 317 pages. In addition to the great expense of the trial and the waste of time of the participants involved, the district has been held liable for more than $11,000 in interest up to September 24, 1959 and upon the amount of the judgment thereafter. It would take the most flagrant and prejudicial errors in the trial to justify a reversal of the judgment and thus permit prolongation of the litigation to the inevitable detriment of the parties. The litigation has already cost far more than the amount involved. The district has been put to unnecessary expense in a substantial amount.

The judgment is modified by the reduction therefrom of the sum of $600 and the interest that has been allowed thereon, unless within ten days after the going down of the remittitur plaintiff files in the action a written demand for a trial of its claim for $600. If such a demand is filed, further trial may be had upon that issue alone. If no such demand is filed, the judgment will stand affirmed as modified. Respondent is awarded costs on the appeal.

SHINN, Presiding Justice.

FORD and FILES, JJ., concur.