Beley v. Municipal Court

California Court of Appeal Dec 17, 1979 No. Civ. 56779Published

Before: Ashby

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Holding. A buyer who cancels a home solicitation contract due to the seller's failure to provide mandatory cancellation notices is not entitled to retain the benefits of the seller's performance without compensation; the seller may recover the reasonable value of services rendered under a quantum meruit theory.

Issues

Whether a buyer who cancels a home solicitation contract under Civil Code section 1689.7 is entitled to retain the benefits of the seller's performance without paying for them.
Whether Civil Code section 1689.11 precludes a seller from recovering in quantum meruit for services performed under a home solicitation contract that was canceled by the buyer.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Although the statute gives Buyer a right to avoid the written contract, there was nothing illegal or immoral about the contract itself or the nature of the services and materials to be furnished under it.”

“Therefore, even though Seller could not recover on the express building contract, Seller is entitled to recovery on quantum meruit for the reasonable value of the improvements Buyer has received.”

“It would be grossly inequitable to interpret the statute to mean that Seller gets no compensation even though Buyer has the benefit of several thousand dollars’ worth of home improvements.”

Opinion

ASHBY, J.

Real party in interest Gerry Harmsma (hereinafter Seller) is a building contractor who brought an action in the municipal

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court to recover for services performed and material furnished in remodeling the home of appellants John and Lorraine Beley (hereinafter Buyer). Buyer moved for summary judgment, which the municipal court denied. Buyer sought a writ of mandate from the superior court to compel the municipal court to grant Buyer’s motion for summary judgment. Buyer appeals from the superior court’s denial of the writ.

On June 10, 1977, the parties executed a contract, at the home of Buyer, for the remodeling of Buyer’s home.

The contract price was $11,689 and the work was to be completed by August 15.

The work was not completed on time, and on November 10, 1977, Buyer gave written notice that the contract was canceled.

Seller brought an action in municipal court alleging three causes of action and seeking damages of $3,000 (Buyer having already paid Seller $8,566). Seller’s first cause of action was on the contract; the second cause of action was a common count for services performed and materials furnished at the special request of Buyer; and the third cause of action was for an account stated. Buyer cross-complained for breach of contract, alleging that the work was not completed or done in a good workmanlike manner, and seeking damages in excess of $3,000.

Buyer moved for summary judgment, contending that the contract was a home solicitation contract (Civ. Code, § 1689.5) which did not contain the mandatory notice of Buyer’s right to cancel within three days (§ 1689.7); that Buyer therefore had the right to cancel at any time prior to Seller’s giving the required notice (§ 1689.7, subd. (e)); that Buyer canceled the contract on November 10, 1977 (§ 1689.6); and that Seller was entitled to no compensation for the services performed (§ 1689.11, subd. (c)).

(Weatherall Aluminum Products Co.

Beley v. Municipal Court

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ASHBY, J.

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