National Pavements Corp. v. Hutchinson Co.

NOURSE, P. J.

Plaintiff sued for damages for breach of contract. Defendant’s demurrer was sustained and defendant had judgment, from which plaintiff has appealed on the judgment-roll.

The complaint alleges that the plaintiff was the owner of the exclusive license to manufacture a certain paving material and, on January 18, 1927, filed with the city of Oakland an agreement to furnish to the city or to anyone to whom the city might award a contract for the paving of any street, such material, together with such expert assistance as might be needed and the right to use the patented process. Thereafter proceedings were duly inaugurated by the city council for the paving of certain streets within the city and for the use therein of the materials and processes owned by the plaintiff. A contract for this purpose was duly executed with the defendant which, in turn, entered into a contract with plaintiff whereby the defendant agreed to furnish all

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“sand, stone, clay, asphalt and mineral ingredients needed . . . ” for said work and to furnish and equip a paving plant and all the “fuel, labor, incidental materials and ingredients necessary for the production of said mixture”. Payments were to be made by defendant to the plaintiff on the basis of eighty per cent of thirty-six cents per square yard of such mixture “laid in the said improvement during the next preceding calendar month”. After the work had proceeded for a short period the city council abandoned the entire proceedings by resolution finding and determining that the public interests and welfare required such action. In this resolution it was recited that certain units of said improvement had been completed in accordance with the plans and specifications and that “the sum of $9,523.55 is the fair and reasonable value of said completed units of said work ...” The superintendent of streets was then authorized to cause that sum to be paid to defendant in full settlement for all work completed and to take a receipt from defendant “in full settlement of all claims for advances, damages, compensation or costs that had accrued or might accrue growing out of said contract ...” It is not alleged that any further sum was paid for a release of claims that might accrue.

In respect to the proceedings leading to the abandonment of the contract the plaintiff alleges that the defendant prevented performance of said contract (with plaintiff) by entering into an agreement of cancellation with the city and that this agreement is evidenced by four several instruments which are attached