*1 Dist., 13452. Second Div. Two. June No. 1942.] [Civ. Corporation), (a COMPANY LACY MANUFACTURING CO., LTD. GOLD MINING Respondent, CROWN (a Corporation), Appellant. *2 for Appellant. V. Peterman
Lester Respondent. Clyde Murphy for Fitzpatrick F. P. James MOORE, Plaintiff instituted this action to recover P. J. performed a contract and for extra labor upon the balance due dismantling, removal, used in the
and materials mining equipment mill reconstruction *3 mining properties in Bernardino operated which certain San controversy primarily County. revolves the extra The about charges. corporations early September, In the officers two contracting
negotiated to removal with view K milling plant from location to a new location of defendant’s as distant, miles hereafter referred to location Y. some six exceeding only over a desert road could be made not The removal through The in and woodlands. 18 feet width hills Y is equipment to be removed to as follows: mass of the 30,000 Hardinge Mill, weight pounds, about A Ball weight engine, Fairbanks and Diesel about horsepower 1-280 32,175 pounds, 4,500 weight pounds, Classifier, about
1-Dorr 1-Dorr Thickener. important item in the list of articles
The Thickener The reason for the omission of its to removed. appear It is a proceed. list will as we weight from the above in unit, in feet diameter and feet cylindrical-shaped shell inch in thickness a steel an height. Its exterior was 5/16 upper of an inch thick in in and its lower feet 1/4 large top, is a tank near below the shell 20 feet. Within trays horizontally placed across the four steel which are Through of the interior. the tank entire width center of trays revolving and extends vertical shaft to which are attached consistency
rakes which stir the material to a thick through trays. itas descends the tank several In order Thickener, necessary move and reconstruct it was trays cutting acetylene dismantle with shell sections, torch removing into the rakes the vertical by withdrawing transporting shaft and shaft itself. After mill Y, from location K it was necessary to location foundations; bottom upon the tank rakes new to reassemble the places to their accustomed on the shaft and to re-establish tank, trays, original welding and shell them into their forms. procured reconstruction, To such effect removal and
plans specifications prepared to be the Southwest Engineering made, Company, prints of which blue one set early of which part was delivered to September, 1938, request with a for a removal bid for plant. reconstruction of the A modified bid was submitted accepted writing by plaintiff September 30. It was day defendant on the 10th total October. The basic amount of the $9,587 plus contract was amount of sales on parts supplied. done, taxes work to The he as described
in the contract, of 15 items. Inasmuch consisted controversy as the parts involves items 14 those of the contract, issue, are omitted. agreement substance of the was that should
furnish specifically “as in full items outlined below and Engineering Company’s accordance with Southwest drawings to; equipment plant referred all be delivered District, Palms, site in the Dale near 29 California.” item, Each describing after the materials to be furnished reconstruction, performed and the labor to be removal and price closes with tax. and the amount of sales Items *4 14 they appear as in the contract are as follows: Moving 5-compartment
“Item 14: of one Dorr Thickener 30'0" x 30'0" old high, diameter from mill site to new mill including: stirring supports site removal of apparatus, beam piping immediately by all supported tank. Cut down trays hauling of tank over normal permitting sections Reassembly of Hauling road widths. all above to new mill site. of piping tank, apparatus and above mentioned trays, of Leveling prepared on foundations to be Purchaser. adjustment may into required put tank back present operating complete, condition. as listed PRICE: $2,800.00.
above. No Sales Tax this item. California figure This is total weight based on an estimated “Note: of agree, upon reassembling unit, tons. We this 42% slight change tray make of location over-flow box and overflows, center and to substitute shoes furnished new to be understanding by purchaser, with the that this work not does furnishing of new material and that involve the changes procedure not interfere with the of our will normal work. Moving present 15: foundations at the old
“Item prepared by purchaser mill to be at new site to foundations mill site: 32,175 pounds. Engine, weighing approx.
“1-Diesel weighing 6x22 “1-Hardinge Mill, Ball with or without liners 30,000 not pounds over x
“1-CIassifier, long wide, weighing approx. 4,500 20' pounds 340.00 $ of complete handling : units For three
Price 9,587.00 15 items Total Price: For ’’ 143.63 Tax Total California Sales agrees writing are: Other of covenants all items as listed complete delivery and installation of “to contract”; working days from date within above Terms : month, sixty-five per day of each calendar “On the first all shipped and price all materials (65%) cent month shall be invoiced during preceding expended labor Balance days after date invoice. payment for within forty-five payment be invoiced price contract shall days completion of contract.” (45) after developed: (1) whether two factual conflicts Upon trial changes to showing the print the blue defendant exhibited contract; before execution the Thickener be made in item 14 was reduced price contract (2) whether the $2,800 $3,200 original sum bid plaintiff from its of defendant president made statements by reason of weigh tons but Thickener did the effect that of the items was The fabrication weighed tons. 42% immediately upon the execution by plaintiff commenced at location untreated ore its bins reason of contract the removal commence agreed K. Defendant *5 On day 10th November. later workmen appeared of the date K began dismantling. at location work of the Because shortage operations of water the were closed for down some days. day January On 21st of accepted defendant controversy plant as reconstructed at T. Other material facts to the appear
will in the recitals that follow but suffice say that, it to here after service a statement of the full amount $6,361.80 paid prior due the sum of to the impasse developed that subsequently because of which instituted this action.
Its complaint counts, namely: (1) contained four for balance charges $3,368.83; (2) due on the basic in the sum performed the value of the extra services and materials unpaid $1,048.92; furnished (3) the sum of for interest
balances in $608.30; (4) upon the sum of an account $5,026.05. stated the sum
At the trial the court found the facts as contended judgment entered thereon favor in the its $5,281.82. sum of
A grounds assigned by defendant, number for reversal are
each of will which be discussed turn. its (1) assigns prejudicial Defendant as error the action cross-complaint. of the court in rejecting in support evidence of the cross-complaint
The to undertook state a cause of action damages resulting alleged delay completion required of the contract. Its claim is that it working days provided job whereas contract that should be done in 30 working days that during extra days it was operate unable to mill its mine and damage in $4,200. provides the sum of While the contract working delivery for the plant installation within parties days, provisions other of the contract show that the
contemplated require that the work entire would months completion. payments for its made be were the first day be made on each calendar month and per price to include 65 of all cent of used materials employed during preceding and all that labor month and payment forty-five days defendants be should invoiced for completion terms, after the the contract. In view of such contemplation properly the trial found that was within the court moving of the parties equipment both working changes to 30 be made were not to be restricted days. period specified That was not as within the time parties contemplated
which all work completed. But aside from the encountered difficulties itself, terms of the contract there is reason of the not a sufficient showing damage suffered; of certain and immediate blocked, out; ore a statement no factual statement even gold-producing structure the surface earth below *6 any
or that amount of ore could be mined and reduced specified time; statement the of within a no of cost royalties mining milling paid. or to be In short there of profits nothing to the available to defendant is indicate during days question. in In the absence of the these and allegations labor, depreciation of the the of the costs of of power water; royalties milling the of of plant, of cost of that paid; amount ore could be mined to be of the question, nothing during period in was in milled there the in cross-complaint trying question to court the the aid the damages are profits any for breach of lost. Recoverable reasonably contemplation in which were those (Johnson entering agreement. time of into parties at the 810]; Levy, App. 591 Pac. Press Cal. [86 California 345, Packing Co., 192 Mfg. Co. v. Stafford 32 A. L. R. Moreover, mining of defendant had not been business any of location; nothing was known at the new established of adequate profits make Loss necessary proof. to of the items to constitute the resulting business is too uncertain new resulting damages by reason of computation of basis for such of an adventure existed profits contract. breach of figures in and not only in fond adventurer dreams kept by an established business. record upon the books of entered operations data, taken from the provable In the absence past, it cannot be assumed that in of a business Mfg. Press realized. anticipated profits will be California Co., supra. of the court Packing The order v.Co. Stafford justified cross-complaint under excluding evidence The court exercised pleading. of that contents on the basis of the refusing request the defendant’s a sound discretion amend. is not sufficient that the evidence (2) It contended is The evidence finding of an account stated. support improbability. contains no inherent score upon received responsible witnesses who testimony It is found On plaintiff defendant. behalf of both testified Schindler, 21, president Mr. February plaintiff, covering charges up made invoices both basic and extra charges Novell, them the office of Mr. delivered at days president of later Novell stated to defendant. Three right.” Schindler the invoices “all Such invoices were although again many discussed the men met times never any charge repudiation thereafter. Neither was there ever any made in 10th of invoice. On March forwarded $10,606.37 a statement for the sum charges including for all then March unpaid, all extras. On defendant forwarded to a check the sum $1,859.10 for specific items statement mentioned March 10th. accompanying The letter that check contained no objections but statement, items mentioned arranging contrary it stated that defendant then
for money plaintiff. April, additional the 18th of On 1939, plaintiff demanding a new statement forwarded $8,341.16 and in reproved the accompanying letter delays reply for its in meeting No written payments. made that demand. In statements of March both charges
and April 18, all labor extra and materials were *7 objections in included the total amount to claimed be due. No in writing April were made the of 18th. to statement 31, On May 1939, $355.90, defendant forwarded its check for accompanied by a letter in he which Mr. Novell stated that was money still'unable to raise quick additional that as “ ’’ put as I it over, day I to you. will forward it On the same plaintiff forwarded to its defendant invoice interest the sum of $136.70 on of unpaid the the account balance from March 7th. Thereafter the end of of fourteen at each successive months forwarded invoices for the accrued unpaid 30-day interest on the preceding account the period. Notwithstanding receipt of its such invoice and letters numerous from to a was plaintiff, lisp defendant not syllable any protest objection uttered or written in or to or balance demanded to item in the account. included Thereafter, August 9, 1939, on by defendant letter offered pay $1,000 per to your week to “until account is liquidated agreed full” and to increase the rate interest from 6 cent per charged per days theretofore to 7 cent. Six later defendant forwarded its cheek in the $250 sum of with a promise to make up “difference.” One week later defendant privilege discharging by
asked the of its debt paying $1,000 every other Still one later week defendant week. bring agreement trying up that it to wrote was to its date on Wednesday. had, By 14th the the next November account of by payments made, to the the few been reduced sum all $6,042.68, charges, which both extra included basic and as well as interest. defendant, delivery From the of time invoices days 1939,
February 30, to December months and the first elapsed. indicating From the of statement time 10, 1939, amount the contract March to December of due days of 30th, period elapsed. and 20 Silence of months period during either a debtor for which he received amount indebtedness reminders of his create account stated. proof required If which other were it is found care by preliminary defendant deliberations was exercised contract and which is evidenced all excusing forwarding defendant checks convincing that the delays. proof exercise such care is it protested vehemently defendant have had been would any charge might with have deemed to which the constant reminder unjust. Thus, by lapse of time and debt, towards defendant, its own conduct of its by its plaintiff, invoices, statements letters from 14, 1939, acknowledged payments plaintiff prior November 30, stated. On December account had become that an discrepancy concerning a 1939, inquiry made when an plaintiff, was and those between books that he would Mr. Novell stated the first occasion on which $1,410.91. pay the sum defendant, the account acquiescence But aside Secretary positive acceptance. established May Novell stated testified that Stevenson the invoices rendered and of the items as testimony The trial court believed statements correct. as indicated Schindler, Stevenson and of Messrs. *8 on 19, 1940, again and YI, February
findings V on that objections December its May retracted 3, 1940, defendant agreed on both $1,410.91 30 item of account to the $1,410.91 just, reasonable the item of that occasions agreement importance of the emphasize To proper. three correct, May 3, 1940, the account was de- interest sent to accrued
additional statements 577 objection 1939, 30, fendant after December to none which was made. Avriting
An account is a stated which exhibits the party indebtedness due from one which, to the other if assented to, expressly impliedly, either or a becomes new contract.
(Wright Strobeck, v. App. 139 552 (2d) Cal. P. [34 781]; Cook, Mayberry v. 121 588 95]; Hendy Cal. Pac. v. [54 March, 702].) 566 Pac. [17
As to what ais reasonable time which elapse should time of the service of account on the in debtor positive an stated, order create account in absence a acquiescence, declaration of is one of law court.
It delay has been held that repudiating six in months the agreement is as matter of law that, unreasonable and it, acquiescence presumed because of will be an account and that thereby (Cusick stated is Boyne, created. 1 Cal. 985]; Pac.
App.
Hendy
supra;
v. March,
Standard
[82
Oil
Van Etten,
Co. v.
to complete an account stated.
(3) Defendant contends that inasmuch as the contract for transporting reconstructing plant writing, was in it cannot be altered an oral statement of the account as in violation of section 1698 of the Civil There Code. obligated attempt vary no the terms of the contract. Item 14
plaintiff to move and reconstruct Y Thickener at $2,800. very presence item of the note to the price agreement effect that the fixed upon was based weight an forty-two estimated total and one-half tons indicates that it was intention parties of the that extra compensation should be allowed for material excess weight of the Thickener. completion After the agreement pay contract the additional $400 of the extra tons Thickener was an independent, way contract and in no collateral alters or varies the written parties. contract of the Parol is properly evidence admissible agreement. (2 parol prove Applied Evidence, such Nichols 67; 2, p. par. Mackin Co., vol. v. Darrow Music It is a Okla. well concur- understood *9 578 entirely parol
rent rule that where evidence is consistent with way changes contract, or contradicts written no (Greathouse Daleno, v. 57 App. should 187 be admitted. Cal. contemporaneous 1019].) supersedes a all writing Pac. The rule that [206 independent negotiations has application oral no arising provided out of contract matters for in agreement. (Cotton Co., v. Riverside 29 the written Cement (2d) Lindsay App. (2d) 588, 136]; Mack, 592 v. Cal. P. [85 (2d) (2d) 350].) 5 P. The extra App. Cal. 491 work [43 required change.” performed by plaintiff “slight a It was not In outlay of material. 207 a substantial labor and all required removal hours of extra work were for the and reconstruction cylindrical weight 20 of an tons of of the additional plant. nothing testimony making-proof There was contradictory any provision of the extras furnished agreements parties The oral primary contract. February 21, May 3,, 1940, on were consistent at provisions agreement. Moreover, with all written of the promises the payment the times of the of defendant to make charged extras, performed of the sums had been work This accepted disposes alone defendant. fact itself, which, provides proof of parol parol evidence rule (Civ. 1698; agreement. Code, oral an executed § Klein-Norton Cohen, Pac. App. 613]; Co. v. 107 325 Cal. [290 Henry, 154, 159].) 314 Pearsall v. Pac. Cal. [95 (4) that, contends in view of the Defendant fact items, separate the account there can no account contained be contrary. each The law is to the separate stated on item. objectionable designate to Excepting may debtor such items as the be him, correct, are all others admitted to (Tuggle Minor, v. account stated as them. becomes objected to, one it is an If item is (Terry no objection made. admission of rest to which is Sickles, 427.) 13 Cal. (5) it held inasmuch as Defendant contends is against counterclaim deemed plaintiff, latter’s demand It is unliquidated interest. claimed and can therefore bear no the amount payment under contract that before was due presented dispute. But when the invoices were became payment 21, 1939, days before February to defendant charges all the due, president stated that of defendant March, 1939, 10th Also, on the state- right. when containing charges all basic and extra ment received defendant, objection no was made. In fact the dissent any uttered at time was that ever of December 30, 1939, May 3,1940. complaint which retracted on September 13, until action was not We this filed 1940. find cross-complaint no record of claim a set-off until filing 11, 1940. October (De
An account stated bears interest from its La date. *10 Montgomery, v. 144 115 887]; Cuesta Pac. Cal. Fee v. [77 Co., 397].) McPhee 31 Cal. 295 In App. Pac. view of [160 objection the fact that no made to the account as delivered 10, 1939, on March it bears interest from that date.
(Civ. Code, 3287.) Where the amount of claim under § liquidated, contract is or certain and is ascertainable isor by unliquidated reduced reason of the an existence of set-off or counterclaim thereto, interest must on be allowed the (McCowen balance found to be due the time it became due. Pew, App.
v. 18 482 354]; Cal. Hansen Pac. v. [123 Covell, 218 (2d) 772, 670].) Cal. P. A. L. R. The [24 fact that a dispute contracting exists parties between as to charges for in performing extras used the contract does not have the of rendering effect the claim by unascertainable calculation. liability pay The debtor can avoid his interest by tendering actually (Kammerer amount the due. v.
Marino, App. 432].) Pac. [245
(6) assigns following question Defendant as error the secretary plaintiff asked the while on stand: “Now why Stevenson, you Mr. did ask that the account be confirmed question April 19, objection 1940?” The basis of the to this it was that for a question called conclusion. The improper. (Powley 471, Swensen, 146 Cal. It thoughts present which, called of the witness non-expert matters, not is evidence. But the answer was prejudical.
not The significance question is made clear by the of defendant to establish effort the inference that an yet by account prior had not been stated parties to the April 19, July dates letters written June 5 and July 26, 1940, in which asked for a confirmation having account. account become stated sometime prior to April, propounding question counsel ostensibly sought to explain have witness those letters which contrary proof the fact by established its actually developed The facts were that account stated. appeared balance of the account as it
having learned that the ledger of defendant from the balance as on the differed books, Mr. his plaintiff’s Schindler wished amount shown any meeting that, at of defendant’s confirmed defendant so advantage creditors, plaintiff would have the of the total explanation given amount of claim. Therefore since the question was material and the witness answer no prejudice have been relevant evidence could suffered permit It permit that or refuse to defendant. is rule largely of the trial questions such rests in the discretion clearly appears ruling upset not unless it judge, whose will complaining been suffered prejudice that has 957.) prejudice suffered (10 Since no party. Cal. Jur. judgment on that account. improper it reverse would be (Art. VI, Const.) § 41/2
In fact established an view of the that assignments unnecessary is to discuss other stated (1) that contract relating to claims of defendant (2) efficiently; there performed promptly was not plant; tonnage proof substantial the excess was not (4) alleged; (3) of defendant was that fraud inadmissible. None the contract was explain evidence to *11 holding for so assignments but our reasons is meritorious these stated. require expression in view of the account no Judgment affirmed. J., concurred.
MeComb, (W. J.), J., concurring. I concur in the judgment. WOOD Stevenson, set the witness question I asked of think that (Hirshfeld improper. was not foregoing opinion, forth in Dana,