Hettinger v. Thiele
Before: Cooper
Synopsis
Building Contract—Destruction op Uncompleted Building by Earthquake—Loss Apportioned—Provision Construed.—A provision in a building contract that, in ease the work provided shall, before completion, be wholly destroyed by fire, earthquake, or other unforeseen act of God, then the loss occasioned thereby shall be sustained by the owner to the extent that he has paid installments thereon, or that may be due under the fifth clause of the contract, which regulates the terms of payment, and the loss occasioned to the contractor shall he for the uncompleted portion of said work upon which he may be engaged at the time of the loss, and for which no payment is yet due under said fifth clause of the contract, provides a rule by which the loss shall be apportioned in the event of the destruction of the building before completion by the earthquake of April 18, 1906, and does not contemplate any rebuilding, by either party, in that event.
Id.—Payments Due Contractor—Architect’s Certificate—Means of Ascertainment Under Existing Contract — Inapplicability Under Destruction.-—While a provision in the fifth clause of the contract for an architect’s certificate is made as a means of showing to .the owner the amount earned and due under the contract, while it continues in force, yet where such clause also provides for the payment of seventy-five per cent of the amount earned and due ; at fixed stages of the work, as it progresses, and the amount must be due before the certificate is made, such provision for an archi- ” test’s certificate does not apply when the building is destroyed, and where a payment was then earned and was due, it is not contemplated that the contractor cannot recover that amount merely because at the time of destruction he had not obtained or demanded an architect’s certificate, especially where the owner agrees that in that event he is to lose all that “may be due under the fifth clause of this contract.”
Id.—Excessive Finding as to Amount Due Under Pleadings and Evidence—Modification of Judgment.—Where the finding as to the amount due is excessive in a small sum, contrary to the pleadings and evidence, the judgment will be modified by deducting that sum from the judgment, and it will be affirmed as so modified.
COOPER, P. J.
This action was brought to recover the amount claimed to be due to the contractor under the terms of a contract for a building which was in the course of construction and uncompleted on the eighteenth day of April, 1906, at which time it was wholly destroyed by the great earthquake. The ease was tried with a jury, to whom special issues were submitted, and upon the verdict as to such special issues judgment was entered in favor of the plaintiff.
No serious question is raised as to the sufficiency of the evidence to justify the finding of the jury upon any question submitted to it. Some questions of law are discussed, particularly as to instructions given to the jury, or offered by the defendant and refused.by the court, but they all depend upon the main question as to the construction to be placed upon the contract; and as the ease turns upon such construction we will discuss that and nothing more.
The contract was one by which the plaintiff agreed to build for defendant a building therein described in the town of Palo Alto for the price of $21,965. It undertook to provide for the apportionment of the loss as between the owner and the contractor in case the building, during its progress and before completion, should be destroyed by earthquake; and it is the
[3]
construction of its provisions upon this question that we are called upon to decide.
The only provisions of the contract bearing upon the question are the fifth and twelfth clauses, which are as follows:
“Fifth.—The owner agrees, in consideration of the performance of this agreement by the contractor, to pay or cause to be paid to the contractor, his legal representatives or assigns, the sum of twenty-one thousand nine hundred^and sixty-five (21,965) dollars in United States gold coin, at the times and in the manner following, to wit: Seventy-five per cent of the said twenty-one thousand nine hundred and sixty-five dollars as the work progresses, twenty-five per cent of the said twenty-one thousand nine hundred and sixty-five dollars thirty-five days after the acceptance of the building.
“Provided,
That when each payment or installment shall become due, and at the final completion of the work, certificates in writing shall be obtained from said O. E. Branson, stating that the payment or installment is due or work completed, as the ease may be, and the amount then due; and the said C. E. Branson shall at said times deliver said certificates under his hand to the contractor, or, in lieu of such certificates, shall deliver to the contractor in writing, under his hand, a just and true reason for not issuing the certificates, including a statement of the defects, if any, to be remedied, to entitle the contractor to the certificate or certificates. And in the event of the failure of the architect to furnish and deliver said certificates, or any of them, or in lieu thereof the writing aforesaid, within three days after the times aforesaid, and after demand therefor made in writing by the contractor, the amount which may be claimed to be due by the contractor, and stated in the said demand made by him for the certificate shall, at the expiration of said three days, become due and payable, and the owner shall be liable and bound to pay the same on demand.
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