Ledbetter v. Bayside Land Co.

NOURSE, J.

Plaintiff sued upon a complaint setting forth four causes of action—to recover a balance due on an express contract for the construction of a bulkhead at Seal Beach, Orange County; a common count for the balance of the reasonable value for the same work; a common count based upon the reasonable value of labor and materials furnished in repairing a portion of the bulkhead which had been washed out; and a cause of action alleging that this repair work had been performed under an express contract termed a “force account” contract or one calling for payment of all cost plus ten per cent. Plaintiffs had judgment on the first cause of action in the sum of $326.10 and upon the third cause of action in the sum of $2,081.07. To the amount found due under the third cause of action the trial court added interest from the date of performance in the amount of $365.06. Plaintiffs stipulate that this interest should not have been allowed and consent to a modification of the judgment in that respect.

[93]

No error is assigned as to the portion of the judgment relating to the first cause of action, but appellant insists that the contract was not fully performed and that it should have been permitted to set off its damages therefor against the amount found due. As to the portion of the judgment based upon the third cause of action, it is argued that the services were gratuitous because, the original contract not having been fully complied with, respondents were obligated to make the repairs without cost to appellant, and also that the evidence does not support the finding that the appellant agreed to pay respondents the reasonable value of the labor employed and materials furnished in making such repairs.

As to the first point urged by appellant, it is sufficient to say that the trial court found that respondents constructed the bulkhead in a good and workmanlike manner and in accordance with the specifications agreed upon at the time of entering into the contract, also that respondents did not agree to construct the bulkhead to prevent the ocean from eroding the land adjacent thereto and that they did not construct such bulkhead in noncompliance with any of the terms and conditions of the contract and in an unworkmanlike or negligent manner. While it may be said that inferences might have been drawn from the facts proved which would have supported a contrary finding, nevertheless sufficient evidence was offered to support these findings as made. It is in evidence that the break in the bulkhead was caused by a heavy tide, which in turn was caused by an unusually heavy flow of water, and also that it had been constructed in a dangerous place against the warning and protest of respondents, but upon the insistence of appellant. The danger was increased by the location of a “seal-pen” in the channel immediately in front of the place where the break occurred, it being said that this caused a whirlpool in the tide which eroded the bank sup, porting the toe of the piling of the bulkhead. This seal-pen the appellant refused to permit respondents to remove, but ordered them to complete the bulkhead in accordance with the specifications of the contract.