Andrews v. Cunningham

[526]

DOOLING, J.

Vella M. Andrews was the owner of land in Santa Cruz County on which she desired to have a house and other improvements built. To this end she entered into an oral agreement with Cunningham and Welch, a copartnership, who were general contractors. The agreement was entered into the latter part of 1946. Work on the improvements was begun in September, 1946, and was completed in the early part of 1947. The agreement, and the work performed pursuant thereto, resulted in the following litigation:

Vella Andrews filed a complaint against Cunningham and Welch for damages for breach of contract. An answer and cross-complaint were filed by defendants, and at the conclusion of the trial an amended cross-complaint was filed. These pleadings comprise action No. 22197. Cunningham and Welch filed a separate complaint for the balance claimed due them on the contract and to have the amount declared a lien on the property. Andrews answered and cross-complained. This was action No. 22226.

The actions were consolidated for trial. Hereafter Vella Andrews will be referred to as the plaintiff, and Cunningham and Welch as defendants.

The trial-of the action resulted in a judgment in favor of defendants for $5,080.81 from which the plaintiff appeals. The court found that under the oral contract the defendants were to be paid on a time and material basis plus 10 per cent, that This amounted for the entire job to $16,080.81, that $8,000 had been- paid on account and that plaintiff was entitled to an offset of $3,000 by reason of defendants’ unskilled, unworkmanlike and careless construction.

The findings were made by reference to the pleadings and after, an analysis of the pleadings and findings we are convinced that some of the material findings are not only not supported by any evidence but are expressly contrary to all of the evidence introduced on the subject by both parties, that by reason of this fact and the extremely general character of other findings the findings as a whole are so vague, ambiguous, uncertain and self-contradictory as to require a reversal of the judgment.

It is undisputed that the oral contract entered into by the parties was to build a home of hollow concrete tile in accordance with plans drawn by a firm of architects. It cannot be disputed that these plans expressly call for certain structural features alleged as a part of the contract in paragraph III of plaintiff’s complaint in the foolowing language: “that the