Thomas Haverty Co. v. Pacific Indemnity Co.

WASTE, C. J.

Plaintiff appeals from a judgment entered in favor of the defendants in an action for damages for alleged breach of contract.

Under the terms of a contract with the city of Santa Monica the plaintiff agreed to perform the labor and furnish the materials necessary to construct a concrete pipe sewer along the ocean front. The defendants Proper and Schrubbe, doing business as copartners, entered into a subcontract with the plaintiff by which they agreed to perform and complete within seventy-five days all the work of excavating, cutting

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and placing of sidewalks, timbering, etc., essential to the construction of the sewer. By the terms of the subcontract plaintiff was required to furnish and lay the pipe on the subgrade as prepared by the subcontractors and was to “do all the pumping necessary to dewater the ground”. The defendant Pacific Indemnity Company is the surety on the subcontractor’s “faithful performance” bond.

Alleging that the subcontractors had failed to complete their work within seventy-five days as agreed, that they had completed only "forty per cent of the work within the designated period, that the work was performed in an unskilful and unworkmanlike manner, and that the subcontractors had abandoned the job, plaintiff prayed for judgment against them in the sum of $20,165.63, and against the surety in the sum of $14,000, the amount of its bond.

By way of answer and cross-complaint the subcontractors denied all charges of default and unskilfulness and affirmatively alleged that they were prevented from fully and seasonably performing their part of the contract solely by reason of the plaintiff’s failure and neglect to keep the ground and ditches reasonably free from water as it had covenanted to do. The answer of the surety is substantially the same with the addition of a defense of material alteration of the subcontract without its knowledge or consent.

The cause was tried by the court sitting without a jury. At the conclusion of the trial detailed findings were made which amply cover the many issues raised by the pleadings. Among other things, the court below found that the plaintiff by failing to faithfully perform that part of the contract requiring it to keep the ground and ditches reasonably free from water during the progress of the work, had prevented the defendant subcontractors from performing their part of the work; that the defendant subcontractors had completed fifty-three per cent of the work in a workmanlike manner; that the plaintiff thereupon took charge of the work and ousted the defendant subcontractors against their will and without their consent; and that by reason of the plaintiff’s failure to comply with the terms of the contract, the defendant subcontractors had been damaged in the sum of $3,089.42, for which amount judgment was entered in their favor. It is also found that the parties to the subcontract had materially modified the same without the