147 Cal. App. 2d 88 | Cal. Ct. App. | 1956
Dino Pollastrini, Ales Maul, Maul and Pollastrini, a partnership, and Harrison Wiggins appeal from the judgment against them upon the plaintiffs’ complaint and upon their cross-complaints.
The Hartungs, the respondents, own a ranch in Merced County, comprising 220 acres of land. They entered into an oral agreement with the partnership, Maul and Pollastrini. The trial court made findings concerning the contract which include the following: Maul, Pollastrini, and the partnership, all referred to hereafter as Pollastrini, agreed to prepare the Hartungs’ land so that it could be irrigated; to sow the land with grasses suitable for permanent pasturage; and to complete the work by December 1, 1952. The Hartungs agreed to pay Pollastrini in cash any reasonable amounts he might charge. Payments were to be made when called for. It was further agreed that Pollastrini should investigate and
Appellant Pollastrini attacks that part of the findings which finds that Pollastrini agreed to have the work completed and the ground seeded by December 1, 1952. There was ample evidence to support the finding. Hartung testified that the deadline for the completion of the work was December 1st, and Pollastrini admitted that December 1st was the date the work was to be completed. However, appellants assert that the agreement that the work be completed by December 1st was modified by the parties. They refer to testimony of Hartung to the effect that, in the latter part
Appellants contend that the court should have found as a matter of law that Hartung waived the bréach of Pollastrini in not completing the work by December 1st. This contention cannot be sustained. The court found that on or about December 1st and every weekend thereafter, until on or about March 5, 1953, Hartung protested to Pollastrini that the work was not completed and demanded that he complete it as soon as possible; that on all such occasions Pollastrini falsely promised to increase his efforts to finish the work in a short time; and that the false promises were made in order to induce Hartung to refrain from terminating the agreement for breach. The court found that as a result Hartung was induced to and did refrain from terminating the contract. The court further found that as a result of
- By the terms of the oral agreement, Hartung agreed to pay Pollastrini any reasonable amount that Pollastrini might charge him. Pollastrini received an amount of $21,400 before the contract was terminated. Pollastrini claims that it was error for the court to receive any evidence of the reasonable value of the work which had been performed because the issue was solely whether Pollastrini used good faith in making his charges. Appellants assert that by the agreement the work was turned over to Pollastrini to complete as he might judge best, and that in the face of his testimony that he did exercise his best judgment the only issue before the court was whether he had done so, and not whether the work was well done or whether it was done for a reasonable charge, or what amount Hartung was reasonably benefited by the work Pollastrini did. We think that appellants misconstrue the contract. While it is true that Hartung was to pay Pollastrini any reasonable amount for his work and services that might be charged, the court found that the contract contained other undertakings on the part of Pollastrini. These included undertakings to level the land by discing, subsoiling, scraping and planing, to put up permanent borders with sufficient ditches to separately irrigate the checks, to provide efficient irrigation facilities, and not to harm the fertility of the soil. The contract also contained a provision that the • work was to be done in a first-class manner and to the best benefit of the Hartungs. There was evidence that Pollastrini failed to keep his bargain. He did not use a land plane at all, which, according to testimony, left the land poorly leveled for irrigation. He failed to erect proper permanent borders, and, according to testimony, the basic plan for leveling was defective in that it required great quantities of dirt to be
While we have not specifically discussed each and every contention advanced in the briefs by the appellants, we think that what we have said disposes of all the issues.
The judgment appealed from is affirmed.
Peek, J., and Schottky, J., concurred.
Appellants’ petition for a hearing by the Supreme Court was denied February 13, 1957.