84 Cal. App. 2d 167 | Cal. Ct. App. | 1948
Lead Opinion
This is an appeal by the Terminix Company, hereafter called appellant, from a judgment denying a peremptory writ of mandate. Appellant initiated these mandamus proceedings in order to obtain court review of the validity of an order of the Contractors’ State License Board, hereafter called respondent, suspending appellant’s contractor’s license for six months and imposing upon it other penalties for alleged violations of the Contractors’ License Law as codified. (Bus. & Prof. Code, §§ 7000-7145 —all section references hereafter made are to this code unless otherwise indicated.) By a writ of supersedeas issued by this court upon stipulation of the parties, the execution of the judgment appealed from has been stayed pending final determination of this appeal.
The complaint before respondent charged appellant with having violated sections 7109, 7113, 7115, 7116 and 7119 of the Contractors’ License Law, in 40 particulars in the course of certain termite control work done for six customers. After a lengthy hearing respondent found that appellant had violated the aforementioned sections, with the exception of section 7115, substantially as alleged, in 27 particulars. The trial court found, on the basis of the record made before respondent and one lone affidavit of a customer, Mrs. Beardsley, that appellant had violated the aforementioned sections, save for section 7115, in nine particulars in the course of work done for four customers, and that otherwise appellant was not guilty of the violations found by respondent. Upon this appeal we are concerned only with the legal correctness of those violations found by the trial court.
Appellant is licensed under both the Contractors’ License Law and the Structural Pest Control Act (§§ 8500-8677). Its work, however, is exclusively pest control work, including structural work incidental thereto. The trial court found appellant guilty of having violated four sections of the Contractors’ License Law which is administered by respondent. Summarily stated, these sections are as follows: (1) wilful, material and prejudicial departure from or disregard of plans or specifications (§ 7109); (2) material failure to complete an operation for the contract price (§7113); (3) doing a wilful or fraudulent act to the substantial injury of another (§ 7116); (4) wilful and unjustified failure or refusal to prosecute an operation with reasonable diligence to the material injury of another (§7119). Bach of these statutory
These nine alleged violations occurred on the Beardsley, Byram, Hamilton and Holm jobs, all performed by appellant’s Pomona office and all substantially performed while that office was under the management of one Carter Griner. Briefly stated, appellant’s misconduct, as determined by the trial court, consisted of the following actions. Appellant, in violation of section 7109, breached its salesman’s oral promise to Mrs. Beardsley, made at the time of the execution of its written contract with her, that it would deduct from the contract price for any porches which did not require seal-off. Appellant likewise, in violation of sections 7109 and 7116, breached the oral promises made by its salesman to Byram that if Byram did certain of the work covered by written contract between appellant and Byram, he would receive a deduction from the contract price for such work, and also failed to give Byram a credit for certain other work done by him although their written agreement called for the credit. In addition, appellant, in violation of the same two sections, double-charged Byram $6.84 for certain lumber. Appellant, in violation of section 7116, overcharged Hamilton and Holm for terminix, its insecticide. Appellant also, in violation of sections 7109 and 7116, built an inferior and unsatisfactory water drain for Holm and, in violation of sections 7109, 7113, 7116 and 7119, did a very poor and excessively costly restucco job upon his house, thereby breaching Griner’s oral warranty to him that appellant would do the job as well and as cheaply as a competent stucco contractor would do it.
The trial court determined that appellant charged Hamilton and Holm, in violation of section 7116, for more Terminix fluid than was actually used on their jobs. Appellant challenges this conclusion upon the ground that the Contractors’ License Law has never applied to non-structural work and that the mere use of an insecticide has always been governed exclusively by the Structural Pest Control Act. In support of this position appellant points out that it is licensed under both statutes and that the treating of the premises of Hamilton and Holm, for- which the questioned charges were made, came exclusively under the latter act (§ 8505). Respondent replies that treating a building with Terminix is repairing and improving the building within the meaning of the- statutory definition of the work for which a
As already noted, several alleged violations were predicated upon the failure of appellant to give effect to oral promises of its representatives. These were: (1) the failure to give credit to Mrs. Beardsley, as orally promised by a salesman, for certain work which was found to be unnecessary; (2) the failures to give credit, as promised orally by a salesman, to Byram for the removal of debris and construction of a flash-wall, which work he had done; and (3) the breach of the oral promise made to Holm by Griner, the branch manager, that appellant would do the restucco work on his house as cheaply and as well as a competent stucco contractor would do it. All these alleged violations must be rejected because they run counter to the fundamental principle of the law of agency, that if a third person has notice of a limitation upon an agent’s authority, he cannot hold the principal responsible for a transaction with an agent in violation of such limitation.
Appellant executed with Beardsley, Byram, and Holm, as it apparently did with all customers, standard written contracts. These contracts contained the following language in large clear type: “No representative has any power or authority to make any alterations of this contract or any promises or representations other than contained herein, and this contract contains the entire agreement of the parties.” Respécting porches, the Beardsley fixed-price contract read: “Seal off all porches if necessary.” The Byram contract, •also for a fixed price, was silent as to deductions to be made if the customer himself removed the debris and installed the flashwall, although two similar deductions were specifically mentioned. The Holm contract was, by its written terms, simply a time and material contract with no price stated
The effect of the language quoted from the three contracts was to notify the customers that as to them appellant’s representatives were powerless to vary by oral promises the terms of the written contracts. The representatives had no authority to make to them the oral promises here involved, and appellant’s responsibility to them did not extend beyond the terms of its written contracts with them. (Civ. Code, § 2318; Rest. Agency, §§ 166, 260, com. (c) ; Harnischfeger Sales Corp. v. Coats, 4 Cal.2d 319, 320-321 [48 P.2d 662]; Gridley v. Tilson, 202 Cal. 748, 751-752 [262 P. 322] ; Hall v. Remp, 73 Cal.App. 2d 377, 381 [166 P.2d 372]; ef., Rest. Agency, §§ 63 com. (f), 258 com. (e).) It follows that since these oral promises were beyond the actual and the ostensible authority of appellant’s representatives, respondent cannot hold appellant for statutory violations based upon breach of them.
The remaining alleged violations and all of those which we have discussed up to this point, with the exception of the Beardsley overcharge, must fall because an essential element of each of them, material prejudice or substantial injury, is lacking. As can be readily seen from our previously presented summary of the four statutory provisions, sections 7109, 7113, 7116 and 7119, such prejudice or injury is expressly required, save for section 7113. However, we believe this requirement to be implicit in this section. .It deals with fixed-price contracts only, and a material failure of the contractor to complete such a contract. Necessarily, in such a case, the owner will suffer to the extent of the cost of completion which must be done at his own expense. Aside from the unsatisfactory work done for Holm, appellant’s claimed misconduct consisted of the making of certain direct and indirect overcharges which we have heretofore briefly stated. Yet, of the four customers involved, only Beardsley paid his bill as rendered. Long before the complaint herein was filed with respondent, both Byram and Hamilton made settlements with appellant which respondent’s ..hearing officer characterized as “eminently fair’’.and which granted to
In the matter of the unsatisfactory work done for Holm, the situation, while differing factually, does not differ legally from those of Byram and Hamilton. While appellant has made no settlement with Holm, it offered, prior to the initiation of this proceeding before respondent, to settle with him on terms more favorable to him than he was entitled to under the findings of respondent’s hearing officer.
Appellant had two basic written contracts with Holm. There was a time and material contract covering generally structural termite control work above-ground and a fixed-price contract in the amount of $330.10 covering generally treatment for subterranean termites. This latter contract was supplemented by an additional work authorization calling for, among other things, the construction of a "cement” drain for a total additional price of $48. In uncovering the infested portions of the house for treatment of the wooden timbers with Terminix, in excess of 60 per cent of the stucco was removed from the walls. Two coats of new stucco were then applied before Holm stopped all work under the time and material contract because its cost was running far beyond what he had anticipated. The restucco work done was so poor that a finish coat could not correct its very substantial defects. The drain was likewise an inferior job; it was poorly constructed of used brick and cement. A good workmanlike stucco job will require the removal of all stucco applied by appellant’s workmen, relathing, and the application of three coats of stucco. The drain, likewise, requires rebuilding.
Appellant presented to Holm an invoice in the amount of $1,625.23 for all of its work for him. Respondent’s hearing officer determined that Holm was entitled to a credit adjustment on this job of $273.16 which, when applied,
The statute does not penalize a licensee for making overcharges which the owner does not pay, nor for poor work which is done over to the satisfaction of the owner. A contractor cannot be held guilty of a violation of the act so long as he stands ready, able and willing to fulfill his contract.
It appears that this proceeding was instituted and has been prosecuted under a lamentable lack of understanding of the statute, but there is more to be said on that subject. Appellant’s vice president and general manager in Los Angeles learned soon after the jobs in question were done, that some investigation had been undertaken by the Contractors’ State License Board and the Structural Pest Control Board. With the attorney of the company he sought information from the representatives of the two boards respecting any complaints that had been made, but they were refused any information. They interviewed their customers, including those hereinbefore mentioned, asking whether they had any complaints on the work that had been done for them. The
After an extended hearing the hearing officer made findings as to the merits of the claims of the owners, Byram and Hamilton, in their dealings with appellant, and specified the credits and allowances to which they were entitled, which, as we have said, amounted to less than they had received. The findings as to these owners and the findings as to the Holm job, with the undisputed evidence as to appellants’ willingness to complete that job, leave no basis for disciplinary action by respondent. It will be for Mr. Holm to decide whether he wishes appellant to restuceo his house and put it back in good condition on the terms offered by appellant. If he chooses not to have the work done, the case will be one for the courts and not respondent.
The erroneous application of the statute to the established facts requires setting aside of the order of the board pursuant to section 1094.5(b) (e), of the Code of Civil Procedure, for the reasons hereinbefore stated. The acts of appellant as established by the findings of the trial court do not support its conclusions of law that appellant violated the statute and its judgment denying the writ was therefore in error.
The judgment is reversed for further proceedings in conformity with the views herein expressed.
Vallée, J. pro tem., concurred.
Concurrence Opinion
—I concurin the judgment. In my opinion, even though Mr. Holm had not paid for the unsatisfactory work, he suffered substantial injury as a result of the wilful and fraudulent conduct of appellant’s branch manager, in that, such conduct caused Mr. Holm’s house to be in bad repair, in poor structural condition, and unsightly for an extended period of time, which condition undoubtedly depreciated its value and detrimentally affected its salability and rentability. I think that discipline should not be imposed on appellant, however, under the circumstances in this case where, as a result of the disloyalty and deceitfulness of
Respondent’s petition for a hearing by the Supreme Court was denied April 29, 1948. Traynor, J., voted for a hearing.