Ernest W. Hahn, Inc. v. Nort-Cet Corp.

Opinion

KAUS, P. J.

In January 1968 plaintiff and defendant entered into a written contract pursuant to which plaintiff was to demolish an existing structure and build a market. The contract price was $234,833. It is clear from the record—which obviously is just the tip of the iceberg—that difficulties of one kind or another arose between the parties. Eventually plaintiff sued defendant in the municipal court for $4,114—the precise amount of the judgment recovered more than two and one-half years later in the superior court—claiming that the contract price had been $238,947 and admitting payment of $234,833. What plaintiff concededly proved, however, was an original contract in the sum of $234,833 modified, according to the findings, by three written amendments, also called “extras” or “change orders,” totaling $4,114. The sufficiency of the evidence to support the findings and the judgment is not challenged; nor is it claimed that the trial court committed error during the trial. Indeed, we have no record of the actual trial proceedings.

In the intervening 32 months during which this action was pending below, the parties had filled the file with just about every pleading and motion known to the law. First there was a cross-complaint which moved the case to the superior court. Then there was a demand for a bill of particulars which was good for several appearances. Discovery proceedings and motions for sanctions then occupied the center of the stage. Several requests for admissions were filed and responded to. Finally, on the day of trial, a motion for judgment on the pleadings

[173]

was denied. This denial is the only issue raised on the appeal from the judgment.

1

We decline to assess blame for making a procedural mountain out of a substantive molehill. We also refuse to join the parties in the outdated game they chose to play in the trial court.

2

What it all boils down to is this: Fairly early in the proceedings plaintiff successfully resisted the request for a bill of particulars by dismissing a common count for work and labor in the sum of $4,114, thereby restricting the complaint to the express contract for $238,947. During the course of the argument on that day counsel for plaintiff made certain statements such as “there weren’t any change orders” which, considered alone, indicated that he was planning to prove that the contract, as originally entered, was at the $238,947 figure. It is undented, however, that in various ways between April 1970 and December 1971, when the case was tried, the defense learned precisely that plaintiff intended simply to prove up the three changes to the contract totaling $4,114.