Doran v. Henry Cowell Lime & Cement Co.

California Court of Appeal Jun 6, 1918 No. Civ. No. 2169.Published

Before: Conrey

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Holding. The court held that the evidence was insufficient to support the finding that the cement failed to meet contract specifications, and that a rejection by the highway commission alone is insufficient to establish a breach without proof of non-compliance or rejection by the engineer.

Issues

Whether the contract required the cement to be acceptable to the engineer.
Whether the trial court erred in admitting oral evidence of contract negotiations.
Whether the evidence supports the finding that the cement failed to meet the required specifications.
Whether rejection by the highway commission is sufficient to establish a breach of contract without proof of non-compliance or rejection by the engineer.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is our opinion that under the terms of the contract the cement was to be acceptable to the engineer.”

“The only testimony offered at the trial concerning the quality of the cement furnished by the defendant was testimony given by experts introduced as witnesses by the defendant. That testimony showed positively and without conflict that the cement was of the grade of fineness as required by said specifications.”

“when the plaintiff in this action seeks to base its right of recovery upon a rejection of the cement by the highway commission, without any allegation or finding of its rejection by the engineer, the plaintiff cannot prevail without first showing that in fact the cement did not comply with said specifications.”

Synopsis

The facts are stated in the opinion of the court.

CONREY, P. J.

Action to recover damages for breach of contract. The defendant appeals from the judgment.

By means of letters and telegrams passing between the plaintiff and the defendant, the terms of the contract were settled in writing. In a letter sent by the plaintiff to the defendant under date of August 11, 1909, the plaintiff said: “As the result of the irresistible persuasive powers of your Mr. Guthrie, kindly ship us as promptly as possible eight hundred (800) barrels of Mt. Diablo cement. . . . This cement is to comply with the inclosed specification of the Los Angeles County Highway Commission, and to be acceptable to their engineer.” Then followed a statement concerning prices and payments. In the reply of defendant, the defendant said: “Yours of the 11th at hand and in reply beg to say that our cement will easily meet the specifications of the Los Angeles County Highway Commission.” Then followed a statement

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somewhat different from that of the plaintiff in its letter concerning prices and freight payments. To the defendant’s letter the plaintiff replied by telegram under date August 17, 1909, as follows: “If you desire order fill according to our letter; if not cancel same. Wire reply.” The defendant replied by telegram as follows: ‘ ‘ Can fill order as per ours fourteenth and will prepay.” The defendant at the same time sent to the plaintiff a letter concerning said telegram, by quoting it and saying as follows: “We now confirm same. The only difference between us is that there is a delivered price Ivy instead of a Los Angeles price plus a local out and so we thought best to wire you as above.”

The plaintiff had a contract with the Los Angeles County Highway Commission for certain paving and concrete work on a road in that county, and purchased the cement for the purpose of using it in the performance of that contract. The specifications referred to in the plaintiff’s first letter to the defendant were the specifications of the plaintiff’s contract with the Los Angeles County Highway Commission. Those specifications, among other things, provided that “no material of any kind shall be used until it has been examined and approved by the engineer, and the decision of such engineer shall be final.” The specifications further provided for the quality of the cement to be used by fixing a standard and a percentage which the cement must pass as compared with such Standard.

Doran v. Henry Cowell Lime & Cement Co.

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Synopsis

CONREY, P. J.

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