Johnson v. De Waard

California Court of Appeal Apr 14, 1931 No. Docket No. 7662.Published

Before: Ward

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Holding. The court held that the defendants breached the construction contract by interfering with the plaintiffs' work, and that the plaintiffs did not waive their rights by continuing to work while attempting to resolve disputes. Furthermore, the court found no fatal variance between the oral contract pleaded and the written contract proven, as they were essentially the same in scope and meaning.

Issues

Whether the defendants' interference with the plaintiffs' work constituted a breach of contract.
Whether the plaintiffs waived their rights by continuing to work after the breach occurred.
Whether there was a fatal failure of proof where the complaint alleged an oral contract but the court based findings on a subsequent written contract.
Whether the defendants were entitled to recover costs for equipment and insurance charged to the plaintiffs.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The premature concreting work was a breach of the contract, which provided that respondents should “make proper progress” and sufficient evidence cannot be found to warrant the application of the doctrine either of waiver or of estoppel.”

“To constitute a waiver, there must be an existing right, benefit, or advantage; a knowledge, actual or constructive of its existence; an actual intention to relinquish it or such conduct as warrants an inference of the relinquishment.”

WARD, J.,

pro tem.

Defendants de Waard & Sons, bonded by the Hartford Accident and Indemnity Company, contracted with the Los Angeles County Flood Control District to construct the Altadena storm drain. A part of this improvement consisted in excavating and concreting a tunnel, together with some work to be performed upon a drift or incline.

De Waard & Sons entered into an oral agreement, which was subsequently reduced to writing, whereby they subcontracted to the plaintiffs the excavating work at $8 per lineal foot, and the timbering at $5 per 1,000 b. m. feet of lumber put in place for timbering the tunnel. The written contract provided that de Waard & Sons should supply air compressor, pipe-line, track, cars, lumber, water, lights, tools, powder, fuse and caps free of charge at the power house or at the heading outside the tunnel. The equipment was to be returned in good condition, except for usual wear and tear. Payments were to be made as follows: Ninety per cent when received by de Waard & Sons from the Los An

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geles County Flood Control District and the balance upon completion and acceptance of the work.

Plaintiffs based their claim upon the original oral contract. Defendants presented a copy of the written contract as part of the answer and filed a counterclaim. The court found that the work was commenced under an oral contract, the terms of which were later reduced to writing; that plaintiffs did not agree to pay defendants for any equipment; that defendants de Waard & Sons charged against plaintiffs rental for the use of machinery, tools, etc., and certain compensative insurance, both of which were furnished by de Waard voluntarily, and that plaintiffs did not become indebted therefor; that plaintiffs excavated 1474 feet of tunnel and incline and set in place 51,000 feet of timber for which plaintiffs were entitled to receive $12,047; that $10,726 had been paid and that plaintiffs were entitled to be paid the sum of $1320.74; that during the progress of the excavating work de Waard

Sons, without the consent of. plaintiffs, constructed the concrete tunnel walls in the east end of the tunnel which necessitated that plaintiffs cease work at the upper end and caused plaintiffs to transport the excavated material much further than they would be required to do if plaintiffs had delayed the concrete work; that about this period de Waard

Johnson v. De Waard

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WARD, J.,

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