Morrison v. Sycamore Canyon Gravel Co.

California Court of Appeal Dec 14, 1929 No. Docket No. 3962.Published

Before: Thompson

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Holding. The court held that a contract provision regarding deferred payments contingent upon the receipt of funds from a third party did not constitute a condition precedent that would allow for the termination of the contract. Consequently, the defendant's repudiation of the agreement constituted a breach of contract for which the plaintiff was entitled to damages.

Issues

Whether a contract provision for deferred payments contingent on the receipt of funds from a third party created a condition precedent authorizing the termination of the contract.
Whether the defendant's repudiation of the contract entitled the plaintiff to damages for breach of contract.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This language may not be said to create a condition precedent which will authorize the termination of the contract.”

“In the present case the provision relied upon is not a condition precedent, but is merely a proviso for deferred payments, and confers no option to cancel the contract for failure of the fund.”

“A party to a contract may not take advantage of his own act or omission to escape liability.”

THOMPSON (R. L.), J.

This is an appeal from a judgment for damages for the breach of a contract of employment to haul gravel to be used' for the purpose of highway construction.

On June 23, 1925, the respective parties executed a written contract of employment providing in part: “Whereas first party (Sycamore Canyon Gravel Co.) has secured the contract to furnish certain materials to Kuhn Bros, for work on the Whittier Boulevard . . . and is desirous of obtaining the assistance of second party (Morrison) in hauling the same ... it is agreed that second party shall furnish the trucks . . . hauling continuously such materials as may be required by first party from the beginning of the work on said job until the completion thereof, and first party agrees to pay second party therefor the sum of $1.15 per five sack . . . batch, subject to the conditions hereinafter contained. . . . First party shall not be compelled to pay second party for such hauling charges until twenty-four hours after first party shall have received the money from said Kuhn Bros, for the hauling of the materials in such preceding month, and that payment by first party to second party is contingent upon the receipt thereof of the money for such materials so hauled. ...”

Pursuant to this contract the plaintiff purchased and procured the necessary trucks and prepared to do the hauling. On June 30, 1925, the defendant sent plaintiff the following notice: “We regret very much to have to inform you that Kuhn Bros, cancelled their contract with us calling for the delivery of material on Whittier Blvd. We entered into our

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contract with you in good faith and trust you may see it in that light. We would ask that the first time you are by Whittier Blvd. that you would stop and talk to Mr. Walker Kuhn, so that he may more fully explain the matter to you. It is simply a case over which we have no control. We are still selling them the material at our El Monte Bunkers, but Kuhn Bros, are buying enough additional trucks to do their own hauling. We wish to thank you for the • trouble that you have been to in looking up this job, and trust that this will not inconvenience you to any great extent.”

Subsequently the plaintiff did interview Walker Kuhn as requested, who informed him they had decided to haul their own material, but would hire him at ninety cents per batch in lieu of the contract price therefor. This modification of the contract was refused by the plaintiff. The plaintiff regarded the contract as renounced by the defendant and filed this complaint for damages on July 24, 1925. The complaint contained two counts. The last one, however, was abandoned and is therefore not involved in this appeal.

Morrison v. Sycamore Canyon Gravel Co.

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THOMPSON (R. L.), J.

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