54 Cal. 605 | Cal. | 1880
The judgment appealed from is against defendant McLaughlin alone. The contract on which the plaintiffs must rely—being that set forth in the answer of defendant McLaughlin—was held to he an “ entire contract ” in Cox v. W. P. R. R. Co. 44 Cal. 18. Assuming that the failure to pay, as alleged, constituted a breach of the contract, the plaintiffs could have treated the specific contract as rescinded, and have brought suit on the
That the present is not an action on the implied promise is apparent, not only from the omission of any averment of the actual value of the work done, but from the whole frame of the complaint.
Where an entire contract is terminated by the employer against the will of the contractor, the latter is not confined to the actual value of the work done, but may prosecute his action for the breach of the agreement, and may recover as damages the profits he would have made had he been allowed to complete the work. The contract is thus terminated where the employer prevents or prohibits the completion of the 'work—the contractor being ready and willing to complete the work. Such actions have been often sustained by the courts. (Smith’s Leading Cases, 7th Am. ed. p. 53; Dillon v. Anderson, 43 N. Y. 237.) But in such cases he must declare specially, and set forth the readiness or tender, and refusal or prevention'.
The language of the complaint before us indicates an intention on the part of the pleader to conform to the precedents in actions of the character last mentioned; it contains a distinct allegation that the defendant prevented the complete performance.
Had the evidence sustained the averment of the complaint, (supposing the pleading in other respects sufficient) the plaintiffs should have recovered not only the amount due when the work ceased, according to the terms of the specific contract, but also such profits as they would have made upon the remainder of the work, had they been permitted to complete the line they had contracted to construct.
The Court below found that the contract alleged by plaintiffs was not the contract between the parties in substance or effect; but we need not make the decision here depend upon that finding.
The District Court did not find that defendant had prevented the plaintiff from completing the work. The finding on that subject is as follows:
“ The defendant, Charles McLaughlin, retarded prosecution of the work under the contract very much, directing suspension*607 of the full force of men that could and would have been employed in prosecution thereof; and said McLaughlin, well knowing that the plaintiffs had to rely upon the moneys they received from him to pay for the materials furnished, and labor and services rendered in performing said contract, and that by refusing to let plaintiffs have their money as it became due, they could not carry on their work, he utterly refused to pay them their money as it became due, for the purpose and with the intent to prevent them from completing their work under said contract, and he did thus prevent them from completing the same.”
By the contract between plaintiffs and defendant McLaughlin, it was provided: “And it is further understood and agreed as aforesaid, that the said party of the second part shall have and enjoy the right to cause the said parties of the first part to increase or diminish the force of laborers, or other means necessary and proper to carry on the work, or to suspend the work entirely, on giving notice to that effect to said parties of the first part, as follows: to increase or diminish such force at least fifteen days, and to suspend the work entirely on thirty days’ notice •—but all delays of time caused by such notices to suspend work, or to diminish the force as aforesaid, shall be allowed to said parties of the first part, for the completion of said work, beyond the time and times herein stipulated for the completion thereof ; and that said parties of the first part shall do and perform such work, or portions thereof, at any and all times, and at such places on the said first section of twenty miles, within the time herein prescribed for the completion thereof, as the said party of the second part shall indicate and require ; or any other portion of said work—giving reasonable notice thereof.”
It appears that by the contract, defendant McLaughlin was authorized to direct “ suspension of the full force of men.” His direction that the force be reduced was, therefore, not a prevention.
The inquiry which remains is: Was defendant’s neglect to pay money, as it became due, such prevention ?
The contract contains no express stipulation which can be so construed as that the payment of any sum, agreed to be paid during the progress of the work, can be held to be a condition
“ A contract, no doubt, may be so drawn as to make the payment of a part of the consideration, by installments as the work progresses, or at stated times independently of the progress of the work, a condition precedent to the further prosecution of the work, and make, its non-payment such a substantial violation
We fully concur with the views expressed in the foregoing citation, and are convinced that the mere failure to pay the money due upon the contract, before the completion of the work, did not constitute such a “ prevention ” as justified a recovery in the present action.
In brief, this is not an action on the implied promise of the defendant to pay the value of the work actually done, or materials actually furnished. It is an action brought to recover for the part of the contract performed, not with reference to its actual value, but according to an arbitrary and conventional standard found in the specific contract—the plaintiffs claiming to recover on the ground that they had been prevented by the defendant from completing their agreement.
The judgment cannot be sustained, because the record contains no finding of prevention; but, on the contrary, contains a finding of facts which establish that plaintiffs were not prevented from completing their agreement.
Judgment and order denying new trial reversed, and cause remanded for a new trial.
Rhodes, J., and Niles, J., concurred.
Wallace, C. J., and Crockett, J., being disqualified, took no part in the decision.