Sherman v. Gray

KERRIGAN, J.

This is an action for damages for breach of contract. Plaintiff owned a piece of land in San Francisco known as Block 39, bounded by Van Ness avenue, Polk street, North Point and Bay street, and on February 21, 1901, entered into a contract with defendants, by the terms of which the defendants were to remove 7000 cubic yards of surplus sand from said block and to pay therefor six and one-quarter cents per cubic yard; they were also to level and grade said block and streets to the official grade, and to cover the entire surface of said block and one-half the streets fronting thereon with clay to the depth of two inches; all of which

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was to be done on or before August 31, 1902, and without any expense to the plaintiff.

It appears from the findings (which are supported by the evidence) that the defendants removed from the said block 11,388 cubic yards of sand, being 4,388 cubic yards in excess of the quantity specified in the contract; that they did not grade or level to the official grade the said block and streets, nor cover said block and one-half of said streets with clay to the depth of two inches or at all. The court further found that plaintiff, in order to bring her said land to the official grade and level, will be obliged to place thereon 4,388 cubic yards of earth, which will cost her the sum of $1090.17; that the defendants have paid the plaintiff only $144.52 on account of the amount due to her for the sand removed from her said block, leaving a balance due thereon of $567.23.

In accordance with these findings a judgment was entered for the plaintiff for the sum of $1657.47. The appeal is from that judgment and from an order denying defendants’ motion for a new trial.

The contract contained the following provision: “For any violation of or default in the stipulation or covenants of either of the parties to this agreement, the defaulting party shall pay to the aggrieved party the sum of $1,000 as liquidated damages.” The court below held this clause of the contract void under section 1670, Civil Code, and awarded the plaintiff the actual damages.

That section reads: “Every contract by which the amount of damages to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section.” The next section (section 1671) is as follows: “The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.”