Appliance Co. v. Kelley

MARKS, J.

Plaintiff filed its action in the Superior Court against defendants to recover a balance due it under a contract to install an

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ice-box and display ease and refrigerating machinery and equipment in a store being erected by the defendant, Joseph C. Kelley, as contractor, for the defendants and appellants, Tony Berardino and Rose Berardino, as owners. Appellants filed their cross-complaint against their co-defendant asking for damages, but it was stipulated by all parties at the trial that upon his deposit of $549 in court no judgment would be taken against him. Respondent recovered judgment against appellants in the sum of $549.

Appellants’ sole ground upon which they ask a reversal of the judgment is that the following findings of the trial court are not supported by the evidence:

“1—Plaintiff was and is at all times mentioned in the amended complaint, a corporation duly organized and existing under and by virtue of the laws of the State of Delaware, with its principal place of business at the city of San Diego, State of California.

‘ ‘ 6—By reason of the acts and conduct on the part of the defendants, Tony Berardino and Rose Berardino, and by reason of their refusal to allow plaintiff to install said unit and coils after said adjustment had been made that the defendants, Tony Berardino and Rose Berardino, acted in bad faith.

“7—The amount due, owing and unpaid from the defendants, Tony Berardino and Rose Berardino, to the plaintiff herein, is the sum of Five Plundred Forty-nine Dollars ($549.00).” '

Appellants abandoned their contention that the finding of the corporate existence of appellant was not supported by the evidence when it was pointed out to them that at the trial they had amended their pleadings and alleged such corporate existence.

The law is well settled in this state that if there is any material evidence in the record supporting the findings of the trial court, they will not be disturbed on appeal.

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In this ease there is competent evidence of the following facts: That in September, 1925, the written order for the refrigerating equipment was placed with respondent; that at that time it was contemplated that the refrigeration would be furnished for a delicatessen store which did not require the maintaining of as low a temperature for successful refrigeration as a meat market; that in December, 1925, appellants decided to rent their store for a umat market and the original contract with respondent was SBUI fled at that time, after part of the equipment had been designed by it; that installation of the equipment was completed on December 21, 1925, and the meat market opened for business on December 26, 1925; that the refrigeration of the display case was accomplished by a series of pipes in which a cooling liquid was circulated, the lower pipes furnishing the cold and the upper pipes returning the liquid to the pumping machinery; that the tenant operating the meat market desired the pipes in the case lowered, which was done to satisfy him and which reduced the level of the cold zone in the case; that the refrigeration in the ease was not satisfactory, and respondent frequently sent its men to the market to make changes and repairs; that at times they found the water shut off from the building and the refrigeration plant shut down; that at other times they were not permitted by appellants or their tenant to work on the machine at all; that respondent always responded to a request to service the plant when a complaint was received; that in February, 1926, respondent, with the consent and at the request of appellants and their tenant, took the pipes and coils from the case to their factory to change the grade of the pipes and thus increase the flow of the cooling liquid through the plant thereby reducing the temperature in the case; that appellants refused to permit respondent to re-install the pipes and coils and refused to pay the balance of respondent’s bill of $549, although they retained a large ice-box built by respondent, the display case furnished by it and all of the refrigerating plant except perhaps that portion removed from the case for change at the factory; that had the pipes and coils been re-installed, the plant would have worked satisfactorily and kept the temperature of the case at a point sufficiently low