San Gabriel Valley Ready-Mixt v. Casillas

SHINN, P. J.

San Gabriel Valley Ready-Mixt, respondent, recovered judgment against Henry A. Casillas, appellant, in the amount of $2,924.67 as the balance unpaid for concrete sold and delivered to defendant.

Responsive to the allegations of the complaint the court found that on or about January 21, 1953, the parties entered into a written contract by which plaintiff agreed to furnish concrete for the construction of 307 houses, the quantity to be approximately 6,140 cubic yards at $9.45 per yard. The first delivery was made on or about February 2, 1953; April 21, 1953, by mutual oral agreement, the written contract was abandoned and the parties orally agreed upon the terms of a new contract under which the amount of concrete to be delivered would be only some 800 cubic yards and the price to be paid for the same $11.52 per yard

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that the oral contract was substituted for the written one; prior to April 21, 1953, plaintiff delivered 125 cubic yards at $9.52 per yard; through September 1, 1953, plaintiff delivered 704 cubic yards at $11.52 per yard and defendant incurred a further indebtedness to plaintiff in the amount of $1,021.92 for “piers, sales tax, cartage and standby time.” The total amount earned by plaintiff was $10,315.61 of which defendant had paid $7,390.94. It was further found that the written contract

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was abandoned and abrogated on or about April 21, 1953. The findings as to quantities delivered were in accordance with stipulations at the trial. It was also stipulated that the only-factual issue was whether the written contract had been abandoned and a new contract substituted in its place. This is the principal question on the appeal, defendant contending that there was insufficient evidence to justify the finding of a novation. The findings are criticized in other particulars.

In order to prove a novation it was necessary for plaintiff to establish an agreement with defendant to abandon and extinguish the written contract and to substitute therefor a new and valid contract (Civ. Code, §§ 1530, 1531), subject to all the rules concerning contracts in general (§ 1532).

There was evidence of the following facts: In March, 1953, De Martino, a salesman for San Gabriel Foothill ReadyMixt, agent of San Gabriel Valley Ready-Mixt, told appellant there would be a shortage of cement and that they would be unable to meet defendant’s demands except with cement imported from the north, and that they could not continue to furnish the same at the contract price, whereupon defendant replied “To hell with it; I will get it from someone else.” During the following two weeks defendant purchased concrete from Consolidated and Jewel City. At that time cement shipped from the north was being sold locally at from $11.52 to $12.50 per yard. After a discussion of prices defendant requested De Martino to speak to Rodeffer, owner of San Gabriel Valley, and said that if the latter would come down in his price $1.00 per yard, to $11.52, defendant might buy from plaintiff. Shortly thereafter defendant was advised by De Martino that deliveries would be made at $11.52 per yard and defendant stated he would purchase the same at that price. Deliveries started immediately thereafter and were continued into the month of September. Plaintiff furnished statements twice a month showing quantities delivered, all of which were priced at $11.52 per yard, except for errors during the months of June and July when certain deliveries were inadvertently charged at $12.52 per yard. Defendant called attention to the errors and they were corrected. For the quantities so delivered defendant paid $128.12 on June 10, 1953, $967.52 on June 27, $4,452.60 on August 10 and $663.16 on August 27. He was fully aware of the prices being charged at the several times deliveries and payments were made. There was evidence that defendant did not object to the price of $11.52 per yard, and while defendant testified that he did