Mayers v. San Francisco Cornice Co.

THE COURT.

This is an action brought by the plaintiff, as assignee for the benefit of the creditors of J. Frank & Co., a corporation, against defendant for $425, claimed to be the balance due under two separate contracts for covering with leather a number of metal doors of the University of California.

[486]

Plaintiff’s assignor, being the lowest bidder as a- subcontractor for the work, a contract was entered into between it and the defendant whereby the former was to do the work for the sum of $650. While the contract called for the work to be done strictly according to specifications, there were in fact no specifications, and the work was to be done according to oral instructions. The manager of the subcontractor, it further appears, as well as others interested in the work, regarded it as somewhat experimental. He felt doubtful whether, even if he followed the instructions given, the work would prove satisfactory to the defendant, and therefore proposed that one door should first be completed, so that they might be better able to judge if the method proposed to be followed was suitable. This was done, and the door as thus covered was pronounced satisfactory by the defendant and the architect of the building, whereupon the remainder of the work was performed in the same manner, and the doors were all immediately installed. About three weeks later the leather commenced to peel off, and after some negotiations the subcontractor and the defendant entered into a second contract, which was in all particulars like the first one, except that under it the subcontractor was to do the work for a little more than one-half the original contract price, viz., $375. Upon removing the leather from some of the doors the defendant claims that it learned for the first time that the leather had not been placed thereon according to instructions and to the understanding between it and Frank & Go., in the particular that the doors had not first been covered with canvas, to which the leather was to be "subsequently glued, but that strips of canvas merely had been placed along and over the seams.

The sole question presented for determination, as we view the record, is whether these instructions were in fact given to Frank & Co.

The manager of this concern testified in so many words that he carried out the instructions as given in covering the doors, and that he was not directed to cover them with cloth or canvas before placing thereon the leather. It further appears from the evidence that after it was learned that the work under the first contract was not satisfactory, there was a dispute