237 P. 386 | Cal. Ct. App. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *204
This is an action brought by the plaintiffs to recover damages for an alleged breach of contract. It is the second appeal. The first appeal is reported, Dyer Bros. I. Wks. v. Central I.Wks.,
The nature of the controversy is fully stated in the decision above mentioned and we pass at once to a consideration of the points made by the appellants. The first point made by the appellants is that the trial court erred in denying the appellants a jury trial. In this behalf the appellants argue that the case was an action at law. We think the point was decided adversely to the appellants by what was said by the supreme court in its decision on the first appeal. [1] Conceding, without deciding, that the case presented certain equitable issues and certain issues at law, at no time did the appellants present the point in the lower court and ask that court to dispose of the equitable issues and call a jury to try the issues at law. The trial court did not commit an error in refusing to submit all issues to a jury.
[2] The appellants contend that the evidence introduced showed that the respondents were seeking to recover a penalty and not liquidated damages. This point was ruled adversely to the appellants in so far as the pleadings are concerned on the first appeal. The evidence which was introduced followed the pleadings. True it is that some of the witnesses made use of the word penalty instead of the words liquidated damages. That irregularity was committed also by the parties in drafting the contract and the fact was before the court on the first appeal. But, taking up the contract by its four corners, the supreme court reached the conclusion that the parties were attempting to draw a contract providing for liquidated damages in the event of a breach thereof and not for a penalty. No evidence is called to our attention that causes us to entertain a different opinion on the evidence than the supreme court reached on a consideration of the facts as pleaded.
[3] The appellants also contend that the proof showed that the respondents suffered no actual damage of any kind. From the nature of the case it was impracticable and extremely difficult for any one of the respondents to fix the amount of its actual damage and to that extent the appellants' *206 contention is sound, but that very fact was what caused the parties in the first place to attempt to frame the contract and to insert the provisions which are now in controversy. In other words, it is the contention of the respondents that from the date their contract was made until the alleged breach by the appellants, each and all of the parties to the contract were on an even basis in being precluded by the labor organizations from getting any business. And it is the contention of the respondents that from the time that the appellants made the concessions to the labor organizations that the appellants were at once enabled to get business and completed it whereas the respondents were not able to compete with the appellants on an even footing. In this contention we think the respondents are clearly correct.
[4] In the next place the appellants make two points which are but different ways of expressing their contention that they proved at the trial a complete defense, whether the action be said to sound in equity or otherwise. They say, "Respondents did not come into court with clean hands and were not entitled to relief in a court of equity," and they say also, "Respondents, themselves, failed to perform the contract and acted in respect thereto exactly as they have charged appellants with having acted." An understanding of these contentions requires a consideration of the sequence of certain events. June 16, 1916, the contract was executed and by its terms it was to continue for three years from date. On August 8, 1916, two of the appellants, and on September 12, 1916, the third appellant, served notice on the respondents that they respectively withdrew from the contract and would not thereafter be bound by any of the terms of said contract. On February 1, 1917, the respondents abandoned the contract in the following manner: On that date each of the respondents, acting separately, changed its method of doing business by proceeding to operate its shop on an eight-hour day instead of a nine-hour day. That act by respondents constituted a rescission. (Pearson v. Brown,
[5] When on September 12, 1916, the appellants abandoned the contract, the respondents had three remedies. They could treat the contract as rescinded and recover upon a quantum meruit as far as they had performed; or they could keep the contract alive for the benefit of both parties, being at all times ready and able to perform; or, third, they could treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits they would have realized if the respondents had not been prevented from performing. (McConnell
v. Corona City Water Co.,
If the respondents would assert that the appellants, having renounced the obligations of the contract, then, and in that event, the respondents thereafter owed no duty toward the appellants, that contention is sound only within certain limits. If thereafter they expected to make no claim on the appellants the contention would be sound. If, on the other hand, they intended, as they would here attempt to do, to hold the appellants responsible to them in an action for *208
damages for the breach of the contract, then, and in that event, as stated in the McConnell case, supra, they were bound to "keep the contract alive for the benefit of both parties. . . ." The respondents were not entitled to breach the contract, rescind it, or abandon it, and to attempt thereafter to base an action on the contract as for a breach of damages. [6] When both parties have rescinded or abandoned a contract the rights of either one thereafter may be enforced not in an action on the contract, but the party who would maintain the action is confined to an action on the common counts. (McConnell v. Corona City Water Co.,supra; Olson v. Lamb,
[7] If it be said that the contract contained a covenant authorizing the termination of the whole contract, the answer is that on February 1, 1917, the respondents did not attempt to proceed to terminate the contract in the manner stipulated in the contract. When thereafter, on September 26, 1917, they did attempt to terminate the contract in the manner provided therein, their act in that behalf was, as stated above, an idle act. They had breached the contract on February 1, 1917, and continuously thereafter, until September 26, 1917. Being themselves in default they could not legally rescind. (California Sugar etc. Agency
v. Penoyar,
The judgment is reversed.
Nourse, J., and Langdon, P.J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on May 7, 1925, and the following opinion then rendered thereon:
THE COURT.
The petition for a rehearing is denied. The respondents admit that they abandoned the contract and all of their allegations and proofs are to the effect that the appellants abandoned the contract. The authorities cited in our former opinion sustain the proposition that under such circumstances no recovery can be had on the contract. [9] The respondents, however, earnestly contend that their whole case rests on the theory that they were prevented from performing, but we do not see any "prevention" as that expression has been defined by the courts of this state. There *210
is neither allegation, proof, nor finding that the respondents have "been prevented from going on with their contract by the positive affirmative act of" the appellants. (Cox v.McLaughlin,
"Thus if one party is prevented from fully performing his contract by the fault of the other party, it is clear that the party thus in fault cannot be allowed to take advantage of his own wrong, and screen himself from payment for what has been done under the contract. The law, therefore, will imply a promise on his part to remunerate the other party for what he has done at his request; and upon this promise an action may be brought." (2 Parsons on Contracts, [*]522, [*]523.)
"Where one party renounces the contract and refuses to perform, the other party is excused from performance on his side, this being a code provision in some jurisdictions. But it should be noted that the repudiation of the contract by one party cannot be held equivalent to performance, or a legal excuse for nonperformance by the other party of conditions *211 precedent, so as to authorize a recovery as for performance of such conditions." (13 C.J. 653, 654.)
"An allegation that the opposite party refuses to permit performance of conditions precedent is not equivalent to an allegation of performance (Myrick v. Merritt,
"The general rule is that where one of the parties has endeavored in good faith to perform and has substantially performed his contract and thereby conferred on the other party a substantial benefit, although he has failed to perform in some particulars, he may recover, as the case may be, on the quantummeruit or the contract price, less the damage sustained by the other party by reason of the failure of strict performance. The right to this recovery does not always come from the original contract, but rests on another contract implied by the law. It is another statement of the principle to say that where the default was not willful, but due to such causes as sickness, death, prevention of performance by the other party or other causes not due to his fault, the law creates a promise to pay for the benefits received *212 from part performance." (3 Elliott on Contracts, sec. 2101.)
A petition by respondents to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 3, 1925.