Koebig v. North American Dredging Co.

RICHARDS, J.

This appeal is from a judgment in favor of the plaintiff in an action brought to recover the sum of $3,028, claimed to be a balance due from the defendant to the plaintiff under a certain agreement in writing which, as set forth in the complaint, reads as follows:

“A. H. Koebig, Sr.,

“Los Angeles, California.

“Dear Sir:

“In consideration of your assigning the agreement which you hold with the Southern California Edison Company, to furnish electric power for dredging purposes at

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Newport Beach, California, to C. F. Guthridge, the North American Dredging Company of Nevada, a corporation, hereby agrees to pay you an amount equal to one cent per cubic yard of material dredged through the use of said company’s dredge leased to said city of Newport on November 20th, 1918, such payments to be made out of moneys as received from said city as rental for said dredge; provided, however, that any sum over and above $2500.00 which said Southern California Edison Company may charge to said C. F. Guthridge for the construction and erection of a line for transmitting electric current to a point marked station ‘S’ north, of Bay Island, on the Harbor channel map of Newport Harbor, approved by Paul Kressly, April 30th, 1918, shall be deducted from the amount so to be paid by said North American Dredging Company of Nevada to said A. H. Koebig, Sr., as above specified.

“North American Dredging Company op Nevada, a Corporation.

“By C. F. Guthridge, Vice-President.”

The complaint further alleges that prior to the making of said contract between himself and the defendant the latter was negotiating for a contract with the city of Newport Beach, by the terms of which the defendant was to lease to said city of Newport Beach a certain dredger to be used by said city in dredging a channel through its harbor, but was unable to consummate said agreement because of the defendant’s inability to provide the electric energy for the operation .of said dredger, and for that reason the defendant had entered into the aforesaid contract with the plaintiff, and was thus enabled to consummate their transaction with the city of Newport Beach, and that under their said contract with said city a large amount of dredging was done. The plaintiff further alleges that he performed the portions of said agreement on his part to be performed, and that the defendant proceeded through the aid of the power thus obtained to do the dredging work specified in said agreement, and thereby and in accordance with the terms thereof became indebted to the plaintiff in a certain amount, upon which certain payments were made, leaving a balance due of the sum for which this action has been brought, and which the defendant is alleged to have failed and refused to pay.