Sirch Electrical & Testing Laboratories v. Garbutt

TAGGART, J.

Action to recover balance due on contract for constructing and installing an electric lighting and heating plant, with counterclaim for damages for failure to comply with contract. Judgment was for defendant for his costs on the complaint and for plaintiff on the counterclaim. Defendant appeals from that part of the judgment which denies him relief on his counterclaim, and the record is presented under the alternative method.

The plaintiff agreed to 'construct, on a boat belonging to defendant, an electrical plant to be comprised of engine, .generator, switchboard, storage batteries, electric cooking range, searchlight and the necessary wiring and equipment to operate the same; to perform the labor necessary to install the-plant, and do the engineering required for and the superintending of the installation of said plant; for which defendant was to pay the actual cost of material and apparatus purchased and manufactured, seventy-five cents per hour for labor in installing the plant, transportation of workmen from Los Angeles to San Pedro and their board and lodging at the latter place if they 'remained there while engaged in the work; and for engineering and superintending fifteen per cent of the actual cost of the plant, such cost in any event to be

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not less than $2,500 for this purpose. The complaint alleges that plaintiff expended $3,700.81; that there was additional apparatus purchased by it in the sum of $320.39 for use in the plant, which was billed to defendant, upon which it is entitled to a commission; that there have been paid on said items, respectively, $3,437.64 on account of materials, and $200 on account of commissions, leaving an unpaid balance of $666.72 due from defendant to plaintiff.

The answer denies that the materials were of any greater value than the sum paid by defendant to plaintiff, and denies any indebtedness on account of commissions, for the reason that the contract was not complied with by plaintiff and no commissions earned. The counterclaim of defendant of $5,754.03 is made up of the $3,437.64 paid to plaintiff for materials, which it is contended are lost to defendant because the plant is valueless and useless to him, except that portion thereof which may be used as a lighting plant, which is of the value of $1,000, and certain fixtures, air-compressor and searchlight of the value of $320.39; and the further alleged items of $1,000 damages for loss of use of the boat for two months owing to delay of plaintiff with the work done; $500 damages for loss of use of the plant for six months; and $500 for completion of installation of parts of the plant left unfinished by plaintiff.