Steel Tank & Pipe Co. v. Pacific Fire Extinguisher Co.

TYLER, P. J.

Action for goods sold and delivered and services performed.

The material facts are contained in the findings of the trial court which show in substance as follows: That a certain partnership made and entered into an agreement in writing with the defendant wherein and whereby the co-partners undertook and agreed to furnish to defendant a steel tank of certain agreed size and specifications for the sum of $1,380, and to deliver the same on top of a certain one-story building in the city of Fresno, the building to be thereafter designated by defendant. At the time of so contracting the partners did not know the name or location of the building upon which the tank was to be erected, or who

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was the owner thereof, nor were they conversant with labor conditions in Fresno as was the defendant. Defendant knew that the copartners were engaged in business and operated and maintained their works with nonunion labor. Pursuant to the contract defendant thereafter designated a certain building, known as the “Wonder Store,” in the city of Fresno, upon which building it had independently contracted with the owner to install a sprinkling system, and of which said installation the tank to be furnished to defendant by said copartnership was to form a part. Thereafter and within the time in which the contract was to be performed the said copartnership duly shipped said tank and materials to be used in connection therewith from their place of business to defendant in the city of Fresno, and at the same time sent their field crew, consisting of a superintendent and laborers, which crew was adequate and competent to accomplish the erection of the tank as provided for. Defendant, notwithstanding this tender of performance on the part of the copartnership, refused to accept the same or to allow the laborers to perform their work, and it ordered the co-partnership to remove the crew from the premises. This was accordingly done. The contract between the copartnership and defendant contained no provision requiring the tank to be erected by union labor or any designated class of labor other than that it should be physically and technically qualified and competent to perform the work contracted to be performed. Defendant’s refusal to allow the work of the erection of the tank with a nonunion crew was dictated solely by the architect representing the owner of the building, who refused to allow any work undertaken by defendant to be performed by nonunion labor. Upon being directed to discontinue their work the copartnership requested defendant to assume responsibility for the care and preservation of the tools and materials belonging to said partnership, but this the defendant refused to do. Watchmen were thereupon employed by the copartnership for this purpose. Thereafter defendant took possession of the tank and materials and caused the same to be installed and erected upon the building.