Brown v. Coffee (1911) · DecisionDepot

Brown v. Coffee

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Nov 7, 1911 No. Civ. No. 1010.Published

Before: Shaw

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Holding. The court held that an architect employed to design and supervise construction lacks implied authority to modify or alter the owner's contract with a builder, and therefore the evidence was insufficient to support a finding of novation.

Issues

Whether an architect has implied authority to modify a construction contract between an owner and a contractor.
Whether an appeal taken under the alternative method (Code Civ. Proc. §§ 941a-941c) allows for review of the sufficiency of the evidence if notice of entry of judgment was not served.

Disposition. reversed

Quotations verified verbatim against the opinion

“Such power was wholly beyond the scope of his agency.”

“The finding is not supported by the evidence, and without such finding the judgment cannot stand.”

Synopsis

The facts are stated in the opinion of the court.

SHAW, J.

Action to recover $967.87, an alleged balance due on account. The complaint avers that plaintiff, at the special instance and request of defendant, performed work and labor and furnished materials in doing sundry carpenter work, the reasonable value of which was $1,467.87, upon

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which defendant paid the sum of $500. The answer denied the material allegations of the complaint, but admitted the existence of a balance due to plaintiff of $369. Judgment went for plaintiff in the sum of $809.73 and costs, from which defendant appeals.

As disclosed by the record, defendant was fitting up a storeroom in Bakersfield, and entered into a contract with plaintiff whereby the latter was to make certain repairs and reconstruct the front of the storeroom in accordance with certain plans and specifications therefor, as made by one Jones, an architect employed by defendant to prepare the same. Plaintiff entered upon the performance of the work, and after proceeding therewith for a time, was employed to do certain other work in and about the storeroom, which work it appears was to be done by day labor, and as to the performance of which no price was agreed upon. The court found that, after plaintiff had entered upon the performance of this contract, “the plaintiff and the defendant entered into an agreement whereby the said contract was altered, so that the plaintiff agreed to furnish said labor and materials to the defendant as aforesaid, and the defendant agreed to pay therefor the reasonable value thereof.” Appellant’s contention is that the evidence is insufficient to justify the court in making the finding.

Respondent has filed no points or authorities in opposition to the contention of appellant, his counsel merely suggesting that the appeal should be dismissed for the reason that the same was taken more than sixty days after the entry of the judgment. Hence, it is claimed this court is without jurisdiction to review the decision on the "ground that it is not supported by the evidence, in support of which he directs our attention to section 939, Code of Civil Procedure, which provides that only in cases where the appeal is taken within sixty days from the entry of judgment can the sufficiency of the evidence to support the decision be reviewed. This appeal, however, is not taken under section 939, but under the alternative method as provided by sections 941a and 941b, Code of Civil Procedure. The latter section provides that any person having the right to appeal may do so by filing the notice designated therein, which notice “may" be filed

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upon the subject with defendant, although he was in and about the building frequently. Nor is there any evidence that Coffee, the defendant, was ever informed of the alleged conversation. It is flatly denied by Jones, who says he never made any such agreement with Johnson, and never informed Mr. Coffee, the defendant, of the making thereof; nor did the latter ever assent thereto. Nevertheless, the testimony of plaintiff’s foreman in support of the finding must be given the same weight as though it was uncontradicted. This for the reason that where there is a conflict of evidence upon any issue, the conclusion of the trial court thereon will not be disturbed on appeal. Conceding the conversation as related by Johnson sufficient to constitute a novation of the contract, nevertheless, since defendant personally was not a party to it, he could not be bound thereby,' unless it be made to appear that he had authorized Jones as his agent to assent thereto. In the absence of any aid from respondent’s counsel, we have examined the record and fail to find therein any evidence tending to establish the fact that Jones had authority to assent to a change in the terms of the contract, the effect of which was to release plaintiff from his obligation to do the work for the stipulated sum agreed upon between him and defendant. The evidence discloses no acts on the part of defendant which would justify plaintiff in assuming that Jones possessed such power. Both defendant and Jones testified that the latter was not so authorized. The fact that Jones was an architect employed by defendant to draw the plans and specifications under which the work was done, and engaged to superintend the work and see that it was performed in compliance with such plans and specifications, conferred upon him no implied power to change the contract. Such power was wholly beyond the scope of his agency. It would be a dangerous proposition to hold that the employment of one as an architect and superintendent of construction of a building conferred upon him by implication the authority to change, modify or alter the contracts entered into between the owner and the contractor.

Brown v. Coffee

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Synopsis

SHAW, J.

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THE COURT.

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