Scott Co. Inc. v. Rolkin

THE COURT.

This action is upon a contract for the installation of a boiler and automatic oil burner, with the necessary connections and equipment, in an apartment

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building owned by defendant Rolkin and occupied by defen ddant Getchell as lessee. Judgment, was rendered in favor of plaintiff and from this judgment defendant Rolkin appeals.

Appellant, desiring to renovate the heating plant contained in said building, entered into negotiations with respondent to perform said work. O'n October 7, 1929, respondent submitted to Rolkin, in writing, an offer to do the work for a specified sum. This offer in substance provided that respondent agreed, for the sum of $2,181, to install a new American Radiator Co. ’s cast-iron sectional steam boiler with smoke and water connections, one Johnson automatic burner with all connections, one 1500-gallon oil storage tank with all pipe connections, one steel stack outside of building, fire-proof boiler-room; also to construct a pit in the boiler-room floor and to do the necessary excavating, backfilling and concrete work in connection with the installation of the oil tank and its piping. On October 17, 1929, and before the work commenced, appellant and Getchell entered into an agreement in writing with each other which provided that Getchell would pay to respondent $681 for the work before its commencement, and that Rolkin should pay the remaining $1500 upon the completion of the installation to the satisfaction of Getchel, and after its acceptance by the fire department of San Francisco. This agreement was delivered to respondent before the work commenced. Appellant contends that this agreement formed a part of the contract for the installation; that it was received and retained by respondent, without objection, before the work commenced. This contention is supported by the fact that on October 25, 1929, Getchell paid $500 on the contract price with his personal check, and by the further fact that after the work was completed respondent mailed to Rolkin the following statement:

“Mr. Edward Rolkins,

“44 Fourth Street, City.

“Heating system installed complete in Ruthland Apartments at 691 0 ’Farrell Street as per agreement $2,181.00 Payment due as per agreement between Mr. Fred W. Getchell and Edward Rolkins $1,500.00.”