Marin Rock Co. v. E. B. & A. L. Stone Co.

RICHARDS, J.

This is an appeal by plaintiff from a judgment in favor of defendant after an order granting the defendant’s motion for nonsuit as to the first count in the plaintiff’s complaint.

The action was one sounding in damages for the alleged breach of certain contracts alleged to have been entered into between the parties, and having relation to the supplying by defendant to the plaintiff of certain road-building material for the construction of certain sections of the state

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highway in the county of Santa Clara, contracts for which had been entered into between the plaintiff and the department of engineering of the state of California.

The facts upon which the plaintiff relied for a recovery under the first count in his complaint may be briefly stated as follows: On July 27, 1915, a written contract was entered into between the said department of engineering of the state of California and the plaintiff herein for the construction by the latter of a portion of the state highway in Santa Clara County between Los Gatos and San Jose. Under the terms of this contract the state, through its said engineering department, agreed to furnish all sand and gravel needed for the work f. o. b. on cars at railway points nearest the section of highway to be constructed. The plaintiff was to unload said material from said cars and haul it to the point of use at its own expense. The defendant was at the time operating a gravel quarry near the town of Campbell, not far from the line of the highway which the plaintiff was to construct, and, learning that plaintiff had been awarded said contract, proposed to plaintiff that it should secure a modification of its contract with the state, whereby the necessary sand and gravel for the construction of said section of highway could be obtained from the defendant’s quarry at Campbell. The advantage to be gained by the plaintiff from such modification of its contract with the state was such as would result from the elimination of the expense to it of the unloading of freight-cars; and the advantage to be derived by the state would be that it would be relieved from the payment of the freight charges of shipping the material by railroad to the points nearest its place of use. The defendant suggested that the state would probably agree to turn over to the plaintiff such sums as it would otherwise be obliged to pay for such freight charges. The plaintiff was apparently agreeable to the plan as outlined by the defendant, and thereupon took the matter up with the state officials by letter, stating that it was willing to have its contract changed so as to provide for the delivery of said material at the defendant’s bunkers at Campbell if the state would allow the plaintiff, in addition to its contract price, the amount of the freight charges which the state would otherwise have to pay.. The state officials consented to this modi