Cox v. McLaughlin

52 Cal. 590 | Cal. | 1878

CONTRACT AS EVIDENCE. — Where a variance has occurred in the performance of a specific contract, under such circumstances as still enable a plaintiff to maintain an action on the implied promise to pay the reasonable value of the work actually done, and the contract, so far as It has been performed, has been performed in accordance with thespecifications therein contained, the contract may ordinarily be introduced as evidence of value.

IDEM. — The point not determined whether, when the contract provides for an arbitrary and merely conventional standard of determining what work has been done, the contract which does not show what work has in fact been done is admissible.

CONTRACT — PLEADING. — Where the complaint sets out a contract for the performance of work, and alleges that the completion of the work was "prevented," the action is upon the contract — part performance and prevention.

IDEM. — In such a case, the fact that the complaint does not allege damages by reason of loss and profits on the whole job does not change the character of the pleading, nor of the proofs necessary to sustain It. Unless prevention Is proved and found, the plaintiff is not entitled to recover.

FALLURE TO PAY AN INSTALLMENT DUE IS NOT PREVENTION. — Where work is to be done under a contract, by the terms of which payments are to be made to The contractor in Installments, the mere failure to pay an installment as It becomes due does not amount to prevention, and will not authorize the contractor to abandon the work and sue for all the benefits he would have received upon full performance.

By the COURT:

If, after this cause shall have been remitted to the District Court, the plaintiff shall ask and the Court shall permit an amendement of the complaint by the insertion of an averment of the actual value of the work done, it will remain for plaintiffs to prove the actual value.

Where a variance has occurred in the performance of a specific contract, under such circumstances as still enable a plaintiff to maintain an action on the implied promise to pay the reasonable value of the work actually done, and the contract, so far as it has been performed in accordance with thespecifications therein contained, the contract may ordinarily be introduced as evidence of value.

But whether, when the contract provides for an arbitrary and merely conventional standard of determining what work has been done, an appeal to which does not show what work has in fact been done, the contract is admissible as evidence of the actual value, is not a question an answer to which is necessary to the determination of this appeal.

When the cause was here on the first appeal, this Court held the contract between McLaughlin and Cox, Myers Co. to be anentire contract, and said: "It is not alleged in the complaint that the work contracted to be performed has been completed, nor that its performance has been prevented by McLaughlin, or that the contract has been rescinded." (44 Cal. 27.)

After the cause was returned to the District Court, the plaintiffs, adopting the suggestion of this Court, amended their complaint by inserting the averment that defendants had "prevented" the completion of the work. There can be no doubt, as we intimated at the former hearing of this appeal, that the complaint, as amended, is an attempt to declare specially upon the contract part — performance and prevention.

The fact that it does not allege damages by reason of loss and profits on the whole job does not change the character of the pleading, nor of the proofs necessary to sustain it. Unless prevention was proved and found, the plaintiffs were not entitled to recover anything on thecontract.

The ninth is simply a finding that defendant did not pay plaintiffs their money as it became due. We have nothing to add to what we have already said in respect to this' finding, except that the language that the defendant neglected and refused to pay, "well knowing that plaintiffs had to rely on the moneys received from him," adds nothing to its effect. Even if, under any circumstances, the failure to pay would authorize the plaintiffs to cease work and bring suit on the contract, (the parties having omitted to insert a provision in the written contract that such failure should constitute prevention) there is no finding that defendant knew at the time the contract was entered into, that plaintiffs relied entirely on his payments to them, or that such reliance was an inducement to the contract on their part. It is manifest that the motive which induced him to refuse or neglect payment cannot affect the rights of the parties under the contract.

There is no finding, in general terms, that defendant "prevented" plaintiffs from performing their contract fully. Nor is there any finding, or evidence tending to prove, that he failed entirely, or prevented, by notifying plaintiffs that he would pay none of the installments as they should become due.

We are, therefore, brought again to the question — in cases like the present, will the mere failure or refusal to pay an installment as it becomes due, authorize the other party to abandon the work, and yet to bring suit for recovery of all the benefit he would have received had he fully performed — that is to say, the contract price up to the time the work ceased, and such profits as he would have made had he performed his contract in all respects ?

An examination of the cases cited by plaintiffs' counsel has not satisfied us that such mere failure to pay has ever been held to be prevention.

In Withers v. Reynolds, 2 Barn. Ad. 882, Patterson, J"., said: "If the plaintiff had merely failed to pay for any particular load, that of itself might not have been an excuse to defendant for delivering no more straw; but the plaintiff here expressly refused to pay for the loads as delivered." The case was commented on in Franklin v. Miller, 4 Ad. Ell. 599. Coleridge, J., there said: "In Withers v. Reynolds, each load of straw was to be paid on delivery."

When the plaintiff said that he would not pay for his loads on delivery, that was a total failure, and defendant was no longer bound to deliver." (See note to Cutter v. Powell, 2 Smith's Leading Cases.)

In Masterton v. Mayor of Brooklyn, (7 Hill, 64, 65) the plaintiff having continued to furnish marble, as required by his contract, up to a certain date, the defendants suspended operations upon the building, and refused to receive any more materials of theplaintiffs, though the latter were ready and offered to perform. Canal Company v. Gordon, (6 Wall 561) construes a statute of California in respect to mechanics' liens, and holds that where a contract is to complete a structure, with agreements for installment payments, a failure to make a payment at the time specified justifies an abandonment of the work, and entitles the contractor to receive areasonable compensation for the work actually done.

In Hale v. Trout, (35 Cal. 242,) there was prevention, or total refusal. Sawyer, J., said: "There was not merely a neglect of payment, but plaintiffs were notified by the defendants that they should treatthe contract as at an end, and would receive no more lumber underit." Cort v. Ambergate Railway Company. This case is reported in Langdell's Select Cases on Contracts, 970. Lord Campbell said: "On the whole, we think we are justified on principle, and without trenching on any former decision, in holding that when there is an executory contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods, gives notice to the vendor not to manufacture any more, ashe has no occasion for them, and will not accept or pay for them, the vendor having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of the contract."

Jones v. Barkley, (2 Douglass, 684) and Ripley v. McClure, (4 Exch. 344) simply hold that where an act is covenanted to be performed by each of two parties at the same time, he who is ready and willing to perform may be discharged of performance by the other, and, if so discharged, may maintain his action on the contract.

None of the cases above referred to declare the proposition that failure to pay an installment on a contract of the kind here sued on will authorize an action like the present.

For the reasons mentioned in the former and present opinion, the judgment and order denying new trial are reversed, and the cause remanded for a new trial.

WALLAGE, C. J., and CROCKETT, J., did not participate in this decision.