Fontaine v. Storrie

California Court of Appeal May 22, 1935 No. Civ. 9633Published

Before: Tuttle

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Holding. The court held that the plaintiff was not entitled to a lien or further recovery under the subcontract because the evidence supported a finding of lack of substantial performance and the parties had mutually canceled the original subcontract.

Issues

Whether the evidence supported the trial court's finding that the plaintiff failed to substantially perform the subcontract.
Whether the cancellation of the subcontract precluded the plaintiff from maintaining an action for recovery under its original terms.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence here shows not merely a trivial imperfection in the performance of plaintiff’s contract, but a substantial failure in completion, which would preclude plaintiff from maintaining an action to recover the full amount of the contract.”

“The judgment must be upheld; first, upon the ground that there is substantial evidence to support the finding of the trial court that there was nothing due plaintiff under his subcontract, and, second, upon the ground that the second agreement”

TUTTLE, J., pro tem.

By this action plaintiff, a subcontractor, seeks to foreclose a lien based upon the balance due under his contract. The original contractor and his sureties are joined as defendants. The trial court denied all relief to plaintiff, with the exception that it gave him a personal

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judgment against the original contractor in the sum of $3,500. Plaintiff now appeals from the judgment.

. In the early part of 1925, Feather River Power Company was the owner of Buck’s Creek project in Plumas County. On October 30, 1925, R. C. Storrie and Company, a copartnership composed of Robert B. Muir and Robert C. Storrie, entered into a contract to construct, for the owner, a hydroelectric plant for $7,691,889. This contract, together with a bond executed by defendant surety companies, as required by section 1183 of the Code of Civil Procedure, was duly filed.

On January 22, 1926, Fontaine, appellant herein, and one Dardier, as parties of the second part, entered into a subcontract with Storrie and Company for the construction of 3,000 feet of a water diversion tunnel connected with the project.

On October 26, 1926, and after this tunnel had been driven some 1380 feet under said subcontract, the parties to the original subcontract entered into another agreement whereby it was mutually agreed that said contract of January, 1926, between the parties

“shall stand cancelled as of the date of this

agreement”, subject to the condition that Fontaine and Dardier should not, nor should their sureties under their bond, “be released from the obligation to pay in full for labor and material furnished for the work done under said agreement up to the date of this cancellation”. There were other provisions in this contract which are immaterial here. Prior to the commencement of this action Dardier assigned to plaintiff all his interest in the lien claim and account, and in any moneys due under the agreement of January 22, 1926.

The contention of plaintiff is succinctly set forth in paragraph X of his complaint. He there alleges that he and his assignor “performed all the conditions of their said subcontract on their part to be performed; that under the terms of said subcontract the said R. C. Storrie and Company became and were indebted to the plaintiff and the plaintiff and the said H. V. Dardier for and on account of the construction of said portion of said tunnel so constructed by them, as aforesaid, in the full sum of $55,314.89; that the said R. C. Storrie and Company has paid on account of such construction the sum of $46,285.87, and no

Fontaine v. Storrie

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