105 Cal. 299 | Cal. | 1894
This is an appeal from the judgment and upon the judgment-roll.
The complaint shows that plaintiffs own a described tract of land; that on the 21st of January, 1887, they entered into a contract with the defendant, whereby defendant agreed, in consideration of the sum of three thousand dollars, to construct and build a house on said lot. As part of said contract plaintiffs executed and delivered to defendant their promissory note for the sum
Thereupon the defendant commenced the construction of the house, but in building the same did not furnish the quantity and quality of materials provided for in the contract.
That he did not construct said building in a good and workmanlike manner, and did not construct the building according to the contract, and has not performed his agreement.
Plaintiffs specify as defects:' He agreed in the construction of the foundations to use good, hard brick and lay seven courses,«and to construct twelve piers of brick laid in six courses. In violation of the agreement he used old, second-hand brick of poor quality, that had been used in other buildings, and laid the same in courses in five and six instead of seven, and constructed only six piers of brick of the same kind laid in three courses.
2. He agreed to use in the construction of the frame of said building the best kind of lumber; contrary to his agreement he used only second-class lumber and second-hand and refuse lumber that had been used in other buildings.
3. He agreed to use in the construction of the roof the best quality of shingles; contrary to his agreement he used second-hand lumber and second-class shingles.
4. He agreed to paint the building with two coats of metallic paint, but used no metallic paint at all, but cheap and inferior paint.
5. In divers other respects he disregarded and failed to carry out the agreement. That there is one thousand dollars difference in the value of the house as constructed and as called for under the agreement.
The answer denies all the allegations of the complaint in respect to the failure to perform the contract, and avers that the building was accepted by plaintiffs after a careful examination.
After these specific findings is the following finding: “ That in divers other respects defendant disregarded his said specifications and failed to carry out his agreement.”
It was then found that “ there is three hundred and fifty dollars difference in value of said building as actually constructed and as it should have been constructed under said agreement pursuant to said specifications.”
It was found that the note and mortgage if left outstanding may cause serious injury to plaintiffs. That the building was never accepted or received by the plaintiffs in full or part satisfaction of the contract, but plaintiffs took possession of the building under protest, and with notice to the defendant that they were dissatisfied with it, and would not accept it, and offered “to deliver up to defendant said building if defendant would cancel said note and mortgage.”
As conclusion of law from these facts the court found that plaintiffs were entitled to judgment; that three hundred and fifty dollars be deducted from the amount secured by the note and mortgage, and that, as to the residue, the note and mortgage were adjudged valid.
From this judgment plaintiffs have appealed, claiming that it is not supported by the findings of fact.
This contention must be sustained. The issues were whether the building had been constructed according to contract, and, if it had not been so constructed, whether it had been accepted by the plaintiffs as performed. On both these issues the court found for the plaintiffs.
Respondent .contends that what he calls the old rule upon the subject of performance has been relaxed, and now a more liberal rule, which only requires a substantial performance instead of a literal compliance with all the provisions of the contract, prevails. But, conceding this, the rule still is that the contract must be substantially performed.
The court here did not find that what was done, though not a literal compliance, amounted to a substantial performance, or that the failure was only in trivial matters. Upon every material issue the facts are found for the plaintiffs, and unless their complaint was demurrable, which is not claimed, they ar$ entitled to the judgment demanded.
Respondent’s" counsel claims that the ultimate fact found of nonperformance is a conclusion from the probative facts found, and that the finding" of probative facts being more specific must control. This point cannot be maintained, for several reasons:
1. Findings of probative facts will not, in general, control, limit, or modify the finding of the ultimate fact. The province of the trial court is to find the ultimate facts, and not probative facts. If, from a consideration of the probative facts, this court should determine that they did not justify the finding of the ultimate fact it would determine that the evidence was insufficient to justify the decision. This, it has been repeatedly held, cannot be done in this mode.
In Smith v. Acker, 52 Cal. 217, the court said: “ It has been held that where -facts are found from which
This decision was expressly affirmed by this court in Gill v. Driver, 90 Cal. 72. See, also, Pico v. Cuyas, 47 Cal. 174; Barrante v. Garratt, 50 Cal. 112; Jones v. Clark, 42 Cal. 180; Mathews v. Kinsell, 41 Cal. 512; Downing v. Graves, 55 Cal. 544.
2. The probative facts found are not inconsistent with the ultimate fact found; on the contrary, they tend to support it.
It is found, for instance, that defendant did not furnish the quantity or quality of materials called for, and did not construct the building in a good and workmanlike manner. That the foundation was not as large as contracted for, and instead of good hard brick he used old, second-hand brick of poor quality. The piers were only one-fourth part as large as called for, and of inferior old brick, and only half as many of them.
There was no first-class lumber in the framework, and some of it was old refuse lumber from other buildings. The paint used was inferior to that called for in the agreement. And then, to prevent the conclusion that the ultimate fact of nonperformance was a deduction from the specific facts stated, it is added that in divers other respects the contract had not been performed. ;
3. If there were no other findings save the specific findings I think it a case where the ultimate fact that the contract has not been substantially performed would
Under such circumstances the court would not have been justified in finding that there had been a substantial performance.
Nor does the finding that the difference between the value of the house as actually constructed and as it should have been was only three hundred and fifty dollars tend to show that the contract had been substantially performed.- That might have been true, though the structure were totally unlike the house contracted for. The owner has a right to have built the structure he contracted for, and not another. Even his caprices, if expressed in the contract, must be complied with, even though they would not have added to the value of the structure, or may have lessened its value. It is only when this’ plan has been substantially embodied in the work that the court can have an occasion to estimate the deficiencies.
The authorities are very clear upon this point. There are a variety of cases to which the so-called modern equitable rule had been applied.
One is where the contractor fails to complete the structure. In such case it is said, if the contractor has done or furnished any thing of which the owner avails himself, such owner may be made to pay the value of it after deducting all damages resulting from the failure of the contractor. In such case it has been sometimes said that it does not matter why the contractor failed to perform.
Another case is where there is a defect which can be remedied. Here the contractor may recover the contract price, less damages caused by the failure, including cost of supplying the deficiency.
Another case is where the contractor has endeavored in good faith to perform his contract, and has substan
Here the defects not being such as defeat or materially change the design embodied in the contract, the contractor may recover, less damages occasioned by the failure.
In such case there must be a substantial performance of every material covenant in the contract, and the failure must not have resulted from design or bad faith, and whether these facts exist is a matter to be determined by the jury or the court sitting as a jury. Substantial performance must be found.
The rule is laid down in Kelly v. Bradford, 33 Vt. 35. The court says: “The party must have intended in good faith to comply with the terms of the contract. The spirit of the contract must be faithfully observed though the very letter of it fail. Hence a voluntary abandonment of the agreement or a willful departure from its stipulations are not allowed. Still, if the contract is substantially kept, a failure in minor particulars—though plainly ascertainable and patent to observation if consistent with good faith, if not wanton or willful—will not prevent a recovery upon the quantum meruit.”
In Hayward v. Leonard, 7 Pick. 181, 19 Am. Dec. 268, it is said: “ When we speak of the law allowing the party to recover on a quantum meruit or quantum valebant, where there is a special contract, we mean to confine ourselves to cases in which there is an honest intention to go by the contract and a substantive execution of it.”
In Elliott v. Caldwell, 43 Minn. 357, it is said: " The omissions and deviations were not slight and easily remedied, but substantial and remediless, except by tearing down and rebuilding the structure. Neither were they the result of mistake or oversight, but intentional and even fraudulent. And we may remark here, in passing, that the very nature of the deviations as in using inferior and defective material all through the
In Crouch v. Gutmann, 134 N. Y. 45, 30 Am. St. Rep. 608, the rule is stated in these words: “ Since the rule of exact or literal performance has been relaxed and recovery maybe founded upon substantial performance, that term, in its practical application to building contracts, has perhaps necessarily become somewhat indefinite otherwise than that the builder must have in good faith intended to comply with the contract, and shall substantially have done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them.”
There is no necessity for multiplying citations upon this point. So far as I have extended my investigations there is no conflict in the cases.
Since the rule as to what shall constitute performance has become so indefinite, it is an important consideration, in determining whether there has been a substantial performance, that the deviations are so slight that they might have been made by one who was honestly endeavoring to comply with his contract.
Good faith, however, on the part of the contractor is
I think the judgment should be modified by giving plaintiffs a decree in accordance with the prayer of the complaint. 1
There is another appeal contained in the same transcript, an appeal from an order made after judgment striking out plaintiffs’ cost bill. The amount of the costs claimed was less than three hundred dollars; this court, therefore, has no jurisdiction to hear the appeal. (Fairbanks v. Lampkin, 99 Cal. 429.)
Belcher, C., and Searls, C., concurred.
For the reasons given in the foregoing opinion the judgment is modified, by giving plaintiffs a decree in accordance with the prayer of the complaint, and that the appeal from the order made after judgment striking out plaintiffs’ cost bill be dismissed.
Garoutte, J., Harrison, J., Van Fleet, J.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in Bank.