Hyde v. City of Santa Cruz

GRAY, J.,

pro tem.

Respondent, by a written agreement, employed appellant to design a sewerage and sewerage disposal works, to prepare all drawings and the contract for its construction and to supervise and inspect" such construction for a percentage of its cost, payable in progress installments, subject to final determination thirty-five days after completion. Although providing that time was "of its essence, the agreement did not limit the time for perform'ance of these services except as to require appellant to begin the engineering work on a specified date and to furnish the designs, drawings and construction contract on a certain day “so that the work may be let and construction thereof may begin as much prior to January 1, 1927, as shall appear expedient and proper and so that the entire project shall be completed and accepted as ■ far as possible in advance of December 31, 1927”. The construction contract, furnished by appellant and executed by the successful bidder, set December 31, 1927, as the date of completion, defined avoidable and unavoidable delays, required the contractor to pay respondent $100 for each day, after date of com

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pletion, the work was uncompleted, as liquidated damages “representing the cost to the city of

additional engineering

and clerical hire and the loss of interest and of the use of the works caused by the delay” and provided that the contractor should pay such sum, if the city extended time of performance for a delay that appellant should determine was avoidable. The work was not completed by December 31, 1927, but was completed within the time extended by the city.

Appellant sued to recover compensation, additional to that provided in his agreement, for his services in supervising and inspecting during such time extension. To supply the lack of time limitation in his agreement for rendition of his services, appellant pleaded that the above-noted provisions of the construction contract were embodied in his agreement. The court rendered judgment against appellant, finding, among other facts, that these provisions did not form part of appellant’s agreement with the city. Appellant appeals, questioning principally this finding. This finding is legally correct. The rule, as stated in section 1642 of the Civil Code, that “several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together” has no present application because appellant’s agreement and the construction contract differ as to parties, dates of execution and subject matter, and they must be regarded as separate contracts, and not as constituting one contract.