Brenner v. Redlick Furniture Co.

SPENCE, J.

Plaintiff brought an action on contract to recover an alleged balance due of $700. Upon trial by the court sitting without a jury, judgment was entered in favor of plaintiff for the sum of $50, from which judgment plaintiff appeals.

The contract was evidenced by a proposition contained in a letter written by plaintiff to defendant dated October 1, 1926, which proposition was accepted by defendant by indorsement of said letter. Plaintiff thereby agreed to furnish “thirty fence signs of various sizes in and around Oakland, Alameda and neighboring sections” at an annual

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price of $40 each, or a total sum of $1200 per annum payable in installments of $100' per month. The following clause is found in the letter: “The period of time over which this deal extends is to cover three years from date providing locations and painting work is satisfactory to yourselves.” This letter and supplemental letters dealt with contingencies such as signs being destroyed and fences being pulled down. Considerable dissatisfaction and controversy arose during the first year covered by the contract. Defendant made various complaints, including complaints of signs being painted out by others, of signs being placed in front of theirs by other sign companies, of boards being tacked across their signs and of high brush and tall grass being permitted to obstruct the view. In July, 1927, defendant wrote to plaintiff stating that the conditions were not satisfactory and further said, “With reference to a continuation of this situation, we are not willing to consider any locations unless we know by personal contact with the owner that they are willing to have the sign remain during the period of time which we are paying for it. In our understanding dated October 1, 1926, it was expressly provided that both locations and paint were to be satisfactory to ourselves so you can easily understand that unless we can agree upon some basis that clearly defines what we mean by satisfactory locations, it would be quite a difficult problem for us to see our way clear to continue this class of work ...” Despite the dissatisfaction, defendant made payments amounting to $1200 to cover the first year. Accompanying their remittance in August, 1927, defendant again wrote a letter stating in part, “Following our communication of July 28, I can only repeat what has been said before that the present situation in respect to painting and locations is not at all satisfactory to us.” Plaintiff testified that he was advised at about the end of the first year that only fifteen of the signs were in satisfactory locations and that defendant was not satisfied with the other locations. The evidence is conflicting as to whether any other locations were ever approved by defendant. Further payments were made totaling $700 and plaintiff sought by his action to recover an additional $700, claiming $500 as the balance due for the second year, and $200 for the first two months of the third year.