*1 A. No. 22911. In Bank. Dec. [L. 1955.] VERNON, CITY Appellant, OF v. CITY OF ANGELES, Respondent. LOS *2 City Attorney, Young, R Hubbard, Edward B. Carson Appellant. III for O’Hara and John W. Shenk F. John Bourke L. Arnebergh, City Attorney, Jones and John Roger Weber, L. City Attorneys, and Weldon Assistant Flynn, Respondent. City Attorney, for Deputy city complaint SCHAUER, J. —The injunction declaratory relief and seeks a determination that city of contracts entered into between it and defendant under 1909, 1925, 1931, 1938 it is entitled to dis Los system sewage through the amount of its sewer charge a certain Angeles; Vernon payment to Los also Los without injunctive damages in seeks enforcement the contracts required pay by judgment the amount which Vernon is People Cal.App.2d (1948), v. (an judg- action in which the State obtained 489] against ment to abate the to this action and others nuisance into discharge caused their Santa Bay). By Monica determina- its answer Los seeks effect; Vernon be tions that the contracts are without to finance cost of new dis- its share Angeles in accordance with the posal facilities built Angeles (1948), People decision the state right Cal.App.2d Vernon has no to use supra, 627; and that sewage system Angeles except payment on share of the cost of the facilities used.
After superior trial the not en- decreed that Vernon is sought; to the relief titled that the contracts between Angeles (except salvageable elements) for certain terminated and “have been invalid and unenforceable since entry than a time later of . . . in the State Action”; Abatement and that Vernon is to use the entitled only payment new facilities on of its share of their cost. appealed. Vernon has It contends that the decision of *3 superior upon court is based the erroneous determination that (People decree in the abatement action Los of Angeles (1948), supra, Cal.App.2d 83 489]) 627 against decided Vernon the raised in action as issues this Angeles. its Los contracts with We have concluded al- though erroneous, such determination of trial court is its judgment upheld can and should on the basis of its further determination that ex- the contracts was discharged cused and the were contracts because impossible except impractical, excessive, became unreason- expense contemplated by con- able when the tracts were made.
The Decree the Abatement Effect of The determination of the trial court in this action that the finally against Vernon in essential issues herein were decided which, error hereinafter abatement action is a serious explained, attempt disregard to rewrite or a sub- involves an superior portion final of the court and stantial a Al- opinions Appeal of District Court of and of this court. a require reversal, it in though does not discussion of this error background will aid under- connection this action with controversy. standing present background litigation factual of this ago Vernon) action is (including as follows: Years cities Los Angeles other than districts in the Los and sanitation Angeles subsequently which defendants area became financially to con- action found themselves unable adequate sewage city struct of Los disposal facilities. The Angeles system outfall ca- had constructed an sewer with a pacity expected Beginning which exceeded its then needs. Vernon, Angeles with and the other than cities Angeles sanitation districts made contracts with Los “ Angeles sewage. con- agreed dispose of their [T]he city Angeles tracts between the other munici- palities and sanitation an districts under discussion were indefinite period, or, for the life instances, in some system itself, any outfall sewer and in no instance carried provision permitting or if the contracts to cancelled when city portion the use system capacity outfall sewer the above- covered (p. Cal.App.2d). mentioned of 83 contracts” Sewage disposed originally under transporting through contract it an Hyperion outfall discharging sewer to into raw Santa Bay 1922, pursuant Monica about 900 feet offshore. In requirements Department Health, of the State of Public including commenced construction of facilities, new screening plant extending and a submarine tube about a Hyperion. operated mile offshore at These facilities were permit under a issued Los in 1923. because Los had violated the terms of the permit nuisance, and created a the state suspended the
permit; however, granted permit a temporary on condition prepare plans that Los at once for the construction financing adequate sewage disposal works. Los An- geles comply did not with the terms of the temporary permit permit. state and the revoked such also permits It revoked including other defendants, Vernon. rights Thus all contracting parties dispose of sewage through existing facilities were terminated. *4 brought
In 1943 the state abatement Judgment action. for February 1, the state was entered on 1946, and affirmed People City v. Los (1948), supra, 83 Cal.App.2d hearing, 627. This court denied a United States Supreme (335 Court denied certiorari U.S. S.Ct. [69 400]). 93 L.Ed.
Both before after institution of the Angeles attempted means, coopera- Los to work out alone or cities, whereby sewage tion be ade- with the other could quately disposed by conforming health and methods with safety by, it sat efforts; Vernon did make similar laws. resting responsibility disposition of on its claim-that all its for People of the sewage, including responsibility its to its Angeles. of California, by State had been assumed Through and im- years pressing need continued proved increase of disposition sewage increased with the used sewage originating the volume in the cities which court, facilities, including, by as found the trial sewage originating “the enormous increase volume of greatly Vernon increased industrial as result of activity its within boundaries.”
After injunction certiorari to review the abatement denied, having system, to Vernon, elected use the Los not, injunction, report steps did what it comply portion injunction taken with the had required of the arrange it to to finance its share of the cost plant; instead, reported having taken new steps its reasons for no portion comply injunction. that with It claimed decree, although it was unable to understand the other had comply cities been able understand and with its terms. abatement action the trial court determined plant plans acceptable for an had new to be built at Hyperion; that it would to the best interests of all defend- sewage through their dispose plant ants to such new al- though possible for some of Vernon, would be the defendants other arrangements Angeles, including make than dispose using great expense to of their without Angeles. ordered that Los facilities plant capacity new of sufficient to abate the build a nuisance; provide other either its that each defendant own disposing sanitary in a safe facilities for arrange to share of the finance its cost new manner gallonage it; such proportionate to allotted notify they of the manner in which defendants injunction. The comply decree elected to continuing supervision court. provided sewage through the new facilities to dispose of its elected to arrangements not make finance Angeles but did built compelled until of such facilities it was of the cost share (see contempt proceedings Su- do so 243]). (1952), Cal.2d Court perior *5 Los previously indicated, As in defendant present the action Angeles that position takes the the trial court determined and has had action that Vernon been decided in abatement rights sewage disposal no con- against Angeles under the Los subject present tracts are the action. The answer allegations by filed Vernon in action denied the abatement against complaint, Vernon of forth the contracts the state’s set 1909, alleged Angeles, and 1931, and 1938 with Los Angeles agreed position Vernon’s that under the contracts upon delivery to keep system good in condition; its sewer that system sewage Vernon into the Los sanitary disposal; that responsibility had sole for its responsible and for the alone was nuisance expense abate it. construction at its sole facilities to superior findings in The court in present fact purports action to determine by “that issues created de allegations nials and affirmative set forth in the answer City of Vernon the abatement unavoidably were [in case] unequivocally by before the in said case . . . and judgment in that case, judicially entered were determined by against the court of Vernon.” The facts relevant however, are, trial of the abatement action the court refused to admit the contracts between and Los evidence, findings in and the particular abatement did not refer there issues and here rights raised Vernon as to its under the contracts. in conclusions law the abatement action contained the following statements which city relate the contracts: Bach primary duty has dispose in safe and a sanitary manner; none of the defendants is released from such any permission right or contract, created ordi nance, “regardless or otherwise; past relationships or con rights, or other privileges obligations tractual between ’’ defendants, injunction various the state is entitled to an re straining from maintaining sewage defendants works without permit from discharging bay a into a man ner which a would create nuisance. apparent findings,
It is from the conclusions, and judgment in the abatement action that the trial court there decided that Vernon’s contracts with Los were no defense that it purport action but did not to decide what contractual rights might against Angeles apart have from the appeal action. On the Vernon and others in the of Appeal abatement action the District Court made it clear injunction the effect of such was far so It rights against Vernon’s were concerned. re- (p. Cal.App.2d), rightfully said “the court any obligations or passing upon rights, frained from of their affecting liabilities the various defendants reason left matters other, contractual relations with each those Al- open adjudication proper proceeding. for future disposal of though the concerned the aforesaid contracts justified in action to sewage, the court would not be this appellants adjudicate rights existing the various between *6 Insofar as one with the other. reason of their contracts appellants the any if of concerned, herein is the any city versa, vice rights against Angeles, the of Los or have pre- any existing contract, rights have been by reason of such may proper in a action.” and be enforced served injunction the After the affirmance of the abatement and hearing certiorari, of a and of the denial instituted steps, by levy present action. It did not take of taxes or issu- imposition charges, pay- of to ance of bonds or raise funds and plant, of its share of the cost of the new ment guilty contempt comply of for failing to with the was found injunction. sought contempt It review of the contending, among things, bringing other that the judgment, compliance injunction. with the This present action was rejected contempt that contention and affirmed the court Superior (City (1952), supra, Vernon v. Court judgment. of said, 509, 518.) purpose We “The obvious of the 38 Cal.2d get promptly the nuisance injunction was to abated and to paid get the new built and without the end to that independent ensuing litigation later delay on or attendant validity of and effect old contracts Vernon the determine ’’ quoted corporate defendants. This court then Appeal quoted which the District Court in language of language paragraph said and of preceding 1‘ ruling discussion, there under This ruling superior court rights they may possess all contractual petitioners preserves requires likewise contracts but them mentioned under independently rights compliance those litigate settle (p. Cal.2d). 519 of injunction decree” determination the trial appears that therefore It injunction de- present in questions adversely its contractual cided contrary to the Angeles is erroneous rights against affirming Appeal District language Court clear upholding injunction and of this court determina.- contempt. Vernon was tion Legal Impossibility ground As a further of decision the trial court determined that there was available to Los of impossi defense bility impossibility, impracticability literal but due to —not (See excessive expense. and unreasonable Park Mineral Land (1916), 289, Co. v. Howard Cal. P. L.R.A. 1916F ; Rest., Contracts, 454.) For the reasons hereinafter 1] §
stated, we conclude that this determination of the trial court is tenable. agreement
Pursuant to the 1909 built within Vernon and system connected to the Los disposal joint main sewer and a lateral sewer for use the two By that contract agrees operate cities. joint agrees pay per maintain the sewers and Vernon operation cent the cost city and maintenance. Each agrees operate system and maintain its own sewer at its expense, portions own “other than those constructed jointly. and used them ... consideration con- [I]n the [joint] struction of named, by sewers above expense, at its own cost and and of the connection of said with the sewers outfall sewer also constructed said discharge of sewage into the [for bay] privilege system and of the of connecting the sewer to be *7 by constructed hereafter said of Vernon with said sewers, discharging of sewage and of said of Vernon sewers,” pay Angeles with said Vernon shall per Los cent of sewer, main to of cost not $12,000, exceed and per cent of the cost of sewer, the lateral not to exceed $1,300. agreement provision The contains no as to its termina- tion. (ante, previously p. 713), pursuant
As stated to a state 1923, Angeles in permit screening plant issued Los built a Hyperion. at and submarine tube These were used facilities in of the 1909 contract.
By agrees in of to contract Vernon its use sewers Angeles of prescribes abide the rules which Los for the use its sewers. agreement (which
The 1931 was never carried out but rather subject controversy parties) became the of much between the permitted provides discharge that Vernon shall be to not sewage per feet of second1 into the Los more than 11.7 cubic Angeles system pursuant contract; to the 1909 for this sewer sewage always discharged has and of Vernon been 1The amount per cubic feet second. now less that 11.7 right pay anything; upon Vernon is not to execu- tion agreement of pay $234,220 right Vernon shall for the discharge to in sewage additional of excess of 11.7 amounts per $36,200 cubic feet second as share the cost its Angeles for sewer; construction Los in relief Vernon sewage per pay in 11.7 excess of feet second Vernon shall cubic Angeles proportion operation, Los annual cost of such replacement, disposal maintenance, repair sewage Angeles facilities of used Vernon the additional quantity sewage discharged by Vernon to total bears sewage through Angeles system. discharged amount of the Los operate, keep good “Los shall maintain condi- sewage system, treatment repair sewers, tion and said outfall agree- and ocean the term this outlet therefrom agreement life of ment.” The term of the shall be (As above, North had Outfall Sewer. indicated to completed 1924; permit construction of this sewer in its 1943.) suspended use 1940 and revoked this sewer was pay $234,220 and promises Vernon its to did $36,200 agreement. In 1937 Los under the 1931 against Vernon, payments filed one for under two actions injunction discharging against and one an agreement system. into the sewage agreement Vernon The 1938 states that Los agreements and prior desire to settle controversies as to all sewage provide operation and maintenance of for future dispose Vernon of 11.7 disposal right facilities. per through feet second cubic Angeles agrees acknowledged. to sell outfall sewers right dispose of an additional agrees buy and Vernon right dispose additional per second; for this 4.3 cubic feet by April 1, 1939, to- agrees $112,885.45 pay totaling payments, annual until gether specified may payments, “in lieu of annual $135,356.60; such unpaid pay- future annual pay. the then worth . . current compounded annum per the rate' of ments, discounted 3% right if it exercises its agrees further annually.” Vernon per second, feet 11.7 cubic sewage in excess of dispose .of by the share, measured ratio of pay proportionate will per to the total flow 11.7 feet second cubic sewage in excess *8 Angeles and treat- outfall sewers through the Los Angeles operation, repair, of the cost to plant, ment replacement, Los An- reconstruction of the and construction plant. pro- The contract treatment and geles sewers outfall by instituted An- the 1937 actions for dismissal vides geles. provisions There are ganging stations, additional toas sewer, a relief and other which need not he set out. matters agreement The provision contains no termination. as to its $112,885.45 made payment provided for 1938 contract it due, compensate after for was interest to with it delay; prepaid payments the annual the contract as provided might do; payments accepted discharge obligations they tendered. were
The present trial court determined that pursuant injunction to the abatement existence of lawful screening plant and the pursuant tube built the 1923 permit expired; required has that Los to build a plant new approximately $41,000,000; tube at a cost of that the cost of operating maintaining plant new tube will approximately $500,000 per An annum; that Los geles cannot continue under its contracts with “except anat excessive and cost; unreasonable practicable is not City of Los to continue the performance under the terms of the contracts . . . the use plant . new . . . . tube.” .
The trial in the present action further determined “That it was plaintiff not intended and defendant City herein that the obligating itself, under the terms ... of the contracts heretofore into entered between parties, operate said to build large ... and and extensive facili- ties treatment purification ; works for the . . . provide for, neither nor all said contracts nor [sic] contemplated by was it parties either of in entering hereto contracts, into said that the of Los was or would under said operate contracts to . . erect . and . costing approximately $41,000,000 . . treatment for the sewage arising treatment of within the boundaries of the of Vernon.” foregoing
The support determinations of the trial court position succinctly Angeles, in its brief,' stated “since use of the contemplated further facilities (ordered by use would be unlawful and the of new facilities action]) unreasonably the Court would be [in cost, excessive in further under said contracts ’’ is excused. legal controlling principles impossibility ex cusing performaee long recognized have been in this state and supra, Park Land v. Howard (1916), Mineral Co. stated where 289, 293, gravel 172 Cal. defendants contracted to take *9 720
from plaintiff’s price, at it land a certain and subse- quently gravel, although present, found the could be taken “ only prohibitive thing impossible legal at ‘A is cost: thing practicable; im- contemplation when it is not and is practicable only when be done at an and un- can excessive (1 Contracts, 216.) We not reasonable cost.’ Beach on do § mean to the themselves intimate that defendants could excuse by showing the the existence conditions which would make obligation expensive they had their more than anticipated, upon But or which would entail a loss them. the great here, the difference is where in cost so as has effect, impracticable, the found, making performance of earth situation is not different from that of a total absence gravel.” the composite As we understand the contracts findings, the parties, implicit and as is in the trial court’s legal parties contemplated that would be available there to be in existence or disposal facilities, use whether those completely constructed, cost of which would dis not proportionate expressly to in those con costs referred upon not relied Therefore, the case is like cases tracts. hardship or held unex Vernon where it was unforeseen (Western Indus pected expense performance. excuse did not 360 (1922), Cal.App. 355, tries v. Mason M. 56 Co. etc. Co. Cal.App. 694, (1929), ; Orr Forde P. v. [205 466] Lloyd Murphy (1944), 25 Cal.2d ; P. see also 429] [282 governmental acts that make [“laws 47] expensive not do unprofitable or more difficult or obligation”].) a contractual excuse the be- undisputed evidence that both points offi- parties into 1938 contract entered fore after attempting to Angeles were with and concerned cials sewage disposal new arrange financing and construction says, evidence, facilities; shows that such recognized and assumed making of the contract the time of the expensive build possibility that it would have to the risk impelled as finding is not Such a conclusional new facilities. inwas It reasonable to believe that what a matter law. they negotiated when contemplation 1943 abate- development was not the radical contract existing past and working out of then ment but many running into expense millions. without difficulties an to the is entitled answer “Plaintiff asserts that in- invalid, they are when were ‘If the contracts questions: ’ are they ? These invalid By manner become what did valid 1 complaint and the answer—material issues raised ’’ way other. or the one issues—and should answered sufficiently judgment herein resolve findings, conclusions, and such, were that conditions by the determination these “issues” per- entered, that judgment was by the time impracticable. of the contracts had become formance contracts “termi Despite language “invalid,” nated” the effect herein im performance by party to determine that when one became *10 practicable altogether regardless abrogated the contracts were performances by already been either what had rendered Ogren (See party. a determination would be Such incorrect. (1927), Cal.App. v. Inner Harbor Land Co. that 607].) accurately, judgment determines P. More the rights” the created under certain described “facilities and relief sewer gouging and (such contracts the stations salvaged, provided by contract) the 1938 can and should be for although way case was not in such a that all obli and the tried adjusted parties precisely by the the gations between could be judgment expressly contemplates an judgment herein, such adjustment of that Vernon is obligations; those it decrees any monetary obligations accrued liable prior entry judgment the to the under contracts action,2 “provided, however, that all the if benefits her from of Los under said by received the all entry judgment in agreements prior to the said said State value than total Action have had a fair less the Abatement owing by her those to the payments made now be such Angeles, she, Vernon, shall credited with excess over such of benefits received.”3 payments value ante, p. 719, Angeles accepted pay- stated, 2As Vernon made obligations discharged principal monetary under two ments which payments other, all lesser Vernon made contract. Whether rights such contract cannot be under determined various facilities herein. from record subject 3Ooncerning the trial court made the of this declaration opinion: following in a memorandum statement declaratory not tried either on a was side relief] “The [for case theory required presentation would that enabled evidence have adjustment Hence, parties. between a financial the court to make presently just, only suggest program that seems to can the court understanding doing free to work out that are so with suggestions. adjustment court’s at variance with the an amicable charged pay- any adjustment Vernon, seems, it should all such up entry judg- composite agreement under to the ments accrued Action, and, up if time in State Abatement that the benefits ment agreements had a fair less her under value than received her, she be credited with the difference.” total cost to should
Other Contentions urges Vernon contracts were validated Municipal (Stats. 1939, 24; Sewer of 1939 eh. District Act Deering’s Laws, Supp., 5192a). Act 4 of Section act provided, “All prior adoption contracts made to the passage this any municipal act or between two cor- more porations . joint . providing construction, . for the use or operation systems, sewage disposal systems, of sewer hereby perform- ratified and ...” further confirmed Since ance of the contracts is excused because of conditions which subsequent arose act, to the 1939 we need not discuss the effect or of previous disposal that act other, laws as Vernon, contracts which are cited for damages
Vernon’s second cause action is the amount which pay under the abate ment judgment for its use return disposal theory facilities. on This cause action is based negligent that the failure of Los perform its con duty tractual keep sewage disposal good facilities carry condition and away was the proximate against cause of Vernon. excused, Since of such the cause of action cannot be maintained. adjudication asserts that the trial court’s specific performance may upon entitled be based
determinations, erroneous, which Vernon claims are that suffered no granted detriment commensurate with the benefits it under paid the contracts and that by consideration disproportionately it was compared with small the value obligations of by Angeles. assumed The determination independent that further excused is of deter- adequacy consideration, minations as to and the latter subject not need be discussed. hearing by petition this court after decision Appeal
of the District Court of Vernon asserted for the judgment court, first that the if affirmed, time deprive trial it is process property will without due of law. argument, This contention but a variant hereinbefore rejected, making that discussed and since the the contracts developments there have been no excuse can their performance. further stated, reasons
For the above is affirmed. Gibson, J., Spence, J., Bray, pro tern.,* J. C. concurred. * Assigned Chairman Judicial Council.
723 CARTER, dissent. J. —I erred trial agree majority opinion
I that the with action deter- that the decree in the abatement concluding further con- raised this action. I am mined issues concluding however, erred also in vinced, that the trial court its contractual performing from that Los is excused obligations impossibility. by reason requires that it rule, established general
It is
so well
per
mere fact that
authority,
token citation of
that the
but
expensive
promise
more difficult and
formance of
is made
made,
parties anticipated
the contract
when
than
obligation
his
promisor from
not excuse the
will
Thye,
95
part
(Metzler v.
163 Cal.
his
[124
the contract.
Co.,
Cal.App.
Bay
122
721];
v. Sausalito
Water
P.
Coulter
(rev. ed.), vol.
;
480
P.2d
Williston on Contracts
[10
780]
Contracts,
467.) “Parties should
careful
1963; Rest.,
§
§
not
contracts,
will
for once made the courts
making
about
policy is
light or
Public
them for
trivial
reasons.
relieve
rights to meas
leaving
and their
subserved
(California
engagements.
Cured
terms of their
ured
They
320].)
Stelling,
P.
141
713
Fruit Assn.
Cal.
v.
[75
may
arrangement,
they
have
an unfortunate
made
but when
voluntarily,
they
into it
have entered
bound
init
grounds
(Cook
equitable
Snyder,
for avoidance.
v.
absence
Cal.App.2d
53].) They
presumed
587
must be
16
P.2d
[61
existing
with reference to
to have contracted
conditions known
Co.,
(Dore
Pac.
163
182
v. Southern
Cal.
P.
to them.
[124
eyes
contracting
open
A
817].)
person
and aware of
presumed
facts is
to undertake
risk
at the
agencies
expressly
from
provided against.
interference
Liguori,
Cal.App.2d
25].)
88
366
(McCulloch v.
P.2d
[199
Moreover, contracting parties
escape performance
cannot
(Metzler
undertakings
hardship.
because
unforeseen
their
”
721].)
Thye,
(12 Cal.Jur.2d,
P.
v.
163 Cal.
Con
[124
Applied
factual
tracts,
226.)
analogous
situations
§
here,
presented
the rule has been
or
stated
laws
performance unprofitable
acts
make
governmental
expensive
per
or
do not excuse the
more difficult
obligation (Aristocrat Highway Displays
form a contractual
Cal.App.2d
;
Western
Stricklen, v.
[157
880]
Co.,
Cal.App.
Mason
etc.
M.
Industries Co.
*12
Cal.App.2d
88
366
Liguori,
v.
P.2d
;
P.
McCulloch
[199
466]
47];
48
P.2d
Lloyd
Sample
25 Cal.2d
Murphy,
25];
[153
v.
;
222
Cal.
P.
Klauber
Co., 129
Flume etc.
1085]
Fresno
[61
v.
555]).
Looking present situation, at we note factual that a governmental An- act—the abatement action—-has caused Los geles to expenditures, performance make certain and has made expensive. obligations of its more contractual Applying general situation, would rule to this factual we performing conclude from that Los is not excused obligations, contractual therefore has right no payment retain all of made Vernon under help facility court order to of a finance construction whereby legally may its contractual obligation. rule developed
The has in modern times that supervening impossibility eases, inwill, proper promisor’s excuse a failure perform. unexpected expense Unusual or does not estab impossibility performance. (Metzler lish Thye, v. 163 Cal. 95 P. 721]; Glens Falls Co. Perscallo, Indem. [124 Cal.App.2d 567].) Failure perform may [216 be excused, however, when the cost great added is so as to making have effect of impracticable. legal contemplation thing impossible a is when practicable, thing impracticable a is when it only can be done at an (Mineral excessive unreasonable cost Park Land Co. v. Howard, 172 Cal. P. 1]). L.R.A. 1916F following particularly characteristics should be noted regard legal to this defense of impossibility: First, it operates to obligor excuse a nonperforming liability from perform. operates his failure to Second, only when obligor’s part imprac- is contract Third, expense ticable. the unanticipated which will render performance impracticable very must greater (in much the Mineral Park ease it greater) was or 12 times than expected performance. or usual cost With these mind, characteristics in majority opinion it is evident that the in supporting has the trial erred court’s on the legal impossibility. basis
Among obligations the contractual Angeles, majority opinion says excused, is duty accept a designated places, dispose and to specified a quantity (up per second) cubic feet from Vernon. performed by It should be noted this up until the time of commencement of action; this being performed presumably it is while this pending courts; assuredly per- case is and will future, formed in the after decision in this rendered case. then, legal It obvious, impossibility the doctrine of *13 obligor applied by majority the does not excuse an as here duty; liability perform from for failure a contractual to majority employed that doctrine is the to rewrite instead parties. between these will continue contract perform by this perform to services which it undertook to dispose of its to contract; will continue points sewer; but designated the Los outfall on required money, obligee, pay will to more Vernon, be future, performance in the of now and for this continuation obligations Angeles. contractual any I of prior am aware of no decision this or legal impossibility applied of has been which doctrine paid promisee to be increase consideration promisor recognizing while that the continue to will nor By as I can neither token, before. the same find law logic support “impracticable” or a decision which terms “impossible” performance, contract both a which recognize having performed is this court been expected performed period for an indefinite approaching legal future. This near situation comes as a any paradox as under my which has come observation. matter, As an additional careful examination the record question in this case raises a as to per- whether cost of forming contract, using facilities, the new substantially is disproportionate the anticipated performance. cost of The majority opinion payments refers to certain made Angeles. to Los The total sum which Vernon had paid up to the time trial for use the facilities of the Los system sewer was in addition to the $296,801.50, rights granting flowage through Vernon. majority The opinion then refers to the trial finding court’s An- geles plant to build a new treatment and tube at a cost of about operation and that and main- $41,000,000, tenance of these facilities will cost per year. about $500,000 figures, juxtaposed But majority these opinion, are misleading. figures “$41,000,000” have “$500,000” bearing slight but on cost to Los of performing obligation its contractual to Vernon.
If were proper application this a case for of the doctrine legal impossibility (if seeking Vernon were damages a any refusal accept from Vernon), figure computed would be to determine whether unreasonably excessively expensive would performing cost Presumably the increased this contract. cost before the advent $300,000 disproportionate approximately
action was not paid by compute To the increase consideration Vernon. cost, recognize one must that Los the additional facts capacity for 260 building sewage disposal plant a gallons day of gallons per day; per million 10 million designed If the capacity this is allotted to Vernon. were Vernon, gallonage and constructed without allotment per day. capacity gallons 250 million still have would is the differ- performing the contract The increased cost 260-million-gallon in cost of construction between ence day plant. What 250-million-gallon per per day plant and a *14 from the determine impossible to this difference would be is us; to deduce requires however, engineer, It no record before in direct increase would not the cost of construction differ- the structural capacity; increase in proportion to the and a 260- day plant 250-million-gallon per ences a between slight. be presumably day plant would million-gallon per in cost attributable increase clear, any rate, is that the It Vernon’s care of large enough to take making plant to the the Vernon performing cost of sewage, and the increased thus great as the times as 10 or 12 sewage contract, not be would have cost $300,000 would approximately which it intervened. had not the action if abatement contract point majority I am Another on which convinced the action, opinion is in error relates to Vernon’s second cause of majority theory negligence. opinion on of states: damages of in the amount “Vernon’s second cause action is pay is under the abatement which it Angeles disposal in of return for its use the Los facilities. theory negligent action based on the that the This cause of is duty perform its failure of Los contractual carry keep sewage disposal good facilities condition and proximate cause of the away of Vernon was performance judgment against Vernon. Since abatement of excused, action cannot be main- duty the cause such of (Emphasis added.) tained.” opinion appears to be incon- point majority On this dispute negligence beyond itself. It is a sistent with duty arising of a predicated the breach may on action Laboratories, Mitchell, Inc. (L. B. out of contract. If causes the 385].) the breach which Cal.2d of action occurs while damage gives rise to the cause right subsisting, plaintiff’s can duty is contractual to. destroyed by that breach cause of action for maintain a the later occurrence of events which are held to excuse performance duty? Obviously not. theory
The main majority opinion of An- is geles’ performance of duties under the contracts is excused because of excessive or expense unreasonable occasioned the' in the decree But Vernon relief action. seeks by way damages alleged negligent operation sewage disposal brought facilities which about the abate- ment action. In other words, alleges a breach contractual duties before the existence of majority conditions opinion which are held in the excuse Clearly of those duties. the breach duty alleged by Vernon in its second cause action sufficient basis' for maintenance of even that cause if majority opinion holding duty were correct to be later words, duty excused. was a breach part on the brought about the condition on which defense impossibility predi- cated.
The pleadings relating second cause action raised (1) the issues whether Los a contractual owed to maintain the plan good old treatment and ocean outlet in repair; (2) whether duty by negli breached that gence, carelessness mismanagement operation maintenance of the outlet; treatment and ocean (3) whether breach, proximate such if any, was the direct and damage cause of the testimony Vernon. Much of trial court related to these issues. The failure of the trial *15 to findings court make direct prejudicial on these issues was (Baggs Taylor error. Smith, 88; Taylor, v. 53 Cal. 192 v. 756, Cal. 71 51 ; Strong Strong, P. A.L.R. v. 22 [218 1074] 540 ; Bertsch, Cal.2d P.2d Cal.App.2d Elliott v. 59 386] [140 Mayer 543 332]; Beondo, P.2d Cal.App.2d v. 83 665 [139 23]; Abeles, P.2d P.2d v. Chamberlain [189 Cal. App.2d Flennaugh ; Heinrich, P.2d [198 927] Cal.App.2d 214 580].)
The trial finding court’s of fact relative to the second cause of action reads as follows: “Insofar as the allegations of paragraphs III, IV, V and VI of said second cause of purport any present to assert obligation City Angeles, any present or right of the Vernon, any arising from or all of the aforesaid contracts and/or any part from conduct on the of the City of Los Angeles, allegations each of said is untrue. It is any not true de- negligence or conduct of the other carelessness and/or judgment entered proximate was cause fendant Action, against Vernon in or said State Abatement required which, effect, pay Vernon to order of the court proportionate other sum as $901,250.00 any the sum of or its share submarine outfall of the new treatment and/or which said any facility sewage disposal, and/or Angeles construct; to judgment required the of Los or damaged in said plaintiff and it is not true that will any any by orders or order said compliance sum with the contrary, plaintiff has been benefited judgment. To the defend- compliance judgment part on the of the with said by said com- ant, plaintiff has will be benefited been and monetary in fair value than pliance greater to an extent she, Vernon, has been will be the total all sums which required by pay.” said to finding purport
This does not to deal with the of a issue Angeles during owed contractual Vernon Los. judgment in period prior to the There abatement action. question finding on the factual is no whether Los duty. finding its contractual breached will damaged by compliance judgment, not be the abatement obviously benefited, will instead be based on the but trial erroneous conclusion from court’s that Los is excused If pay the contract. Vernon is performing contractually render, service which Los bound to damaged obviously Vernon will be to the extent of value service, damage of the suffered Vernon as result the failure contractual sewage duty by operating disposal facilities in such a public as to create a nuisance which necessitated manner action. It should be that Vernon had noted of operation disposal manner power no to control the facilities. opinion my should be the terms of held it made with Vernon. Vernon’s con- contract which per sewage right 11.7 cubic feet second of to flow tractual system payment Angeles sewer without further into the right upheld. Vernon should have the further should be per feet second into 4.3 cubic an additional
flow subject system, payment pro- of a Angeles sewer disposal provided cost as portionate share should be ordered to return the contract. pursuant made payment much Vernon so *16 action as is attributable to in the abatement decree to the per con- cubic feet which Los second flow tractually accept. bound judgment.
For the above reasons stated I would reverse Traynor, J., concurred. January
Appellant’s rehearing petition was denied McComb, J., Bray, 5, participate 1956. did therein. J. tem.,* place Shenk, Carter, pro participated therein J. petition Traynor, J., opinion were of J., granted. should A. No. 23700. In Bank. Dec.
[L. 1955.] CITY OXNARD, OF Petitioner, DALE, ETHEL Clerk, etc., al., Respondents. et *Assigned by Council. Chairman Judicial