266 P. 594 | Cal. Ct. App. | 1928
Plaintiff alleges in the complaint that it sold and delivered certain building materials to defendants O'Brien and Essery at their instance and request and seeks to recover the sum of $530.32, the balance due on the purchase price. O'Brien was the owner of a house on which certain alterations were being made and *778 Essery was engaged to make the alterations under an agreement by which his compensation was to be calculated on the basis of ten per cent of the cost of labor and materials used in the work. The defendants answered separately, O'Brien claiming that Essery was an independent contractor and therefore solely liable, and Essery claiming that he was merely the agent of O'Brien. The trial court found in favor of the contentions of Essery and rendered judgment against O'Brien, who prosecutes this appeal.
[1] Determination of the appeal depends upon the question whether the findings are supported by the evidence. Since the findings are in favor of plaintiff, the evidence must be considered in the light most favorable to its contentions. (Hoppin v. Munsey,
[2] Sufficient evidence appears in the foregoing to sustain the finding of the trial court that Essery was the agent of O'Brien rather than an independent contractor. [3] It is well settled that one performing services for another is an employee if he does not have the right to control the means by which the services are rendered. (13 Cal. Jur. 1019.) In Luckie v.Diamond Coal Co.,
[5] One rendering services for another under the so-called percentage plan might or might not be an independent contractor, depending upon the circumstances of the individual case. [6] In the case now before us there was no written contract and there is an "absence of any express terms affirming or negativing the power of control and direction." It was therefore the duty of the trial court to draw reasonable inferences from the surrounding circumstances to determine who had the right to control the means of doing the work. (Press Pub. Co. v. Industrial Acc. Com.,supra.) [7] We find that O'Brien had the right to discharge Essery when he pleased and did in fact exercise this right. This is a "strong circumstance tending to show the subserviency of the employee." (13 Cal. Jur., 1034.) We also find that O'Brien personally bought some of the material used in the work, an act entirely inconsistent with the claim that Essery was an independent contractor. From his letter to Essery it appears that O'Brien sent laborers to be employed on the job and demanded an explanation why they had not been put to work. A finding that Essery was an independent contractor would necessarily involve holding that O'Brien had no right to purchase any of the material and that Essery had the absolute right to determine where each article of the material used should be purchased. In view of all the circumstances, it cannot be said that the trial court was not justified in holding that Essery was the agent of O'Brien rather than an independent contractor.
Counsel have not called to our attention any California decision in which a percentage building contract is construed with reference to the liability of the owner for bills incurred by the builder. Decisions from several other states have been cited, but these do not conflict with the views herein expressed. The statements of facts in the decisions cited are either incomplete as to the terms of the contract or definitely show that the builders had the right to control the details of the work. The case of Carleton v. Foundry Machine Products Co.,
The judgment is affirmed.
Houser, Acting P.J., and York, J., concurred.