Anderson v. Quick (1912) · DecisionDepot

Anderson v. Quick

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

California Supreme Court Sep 6, 1912 No. S.F. No. 5889.Published

Before: Sloss

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Holding. The court held that the contract did not require the parties to reach a prior adjustment of losses resulting from the partial destruction of the building before the contractor could resume work, and that the contractor failed to prove the owner prevented performance.

Issues

Whether the contract required the parties to adjust losses resulting from partial destruction before the contractor could resume performance.
Whether the evidence supported the finding that the defendant did not prevent the plaintiff from performing the contract.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The twelfth clause certainly does not declare in terms that the parties shall agree upon the amount of the loss to be borne by the owner and the contractor, respectively, in the event of a total or partial destruction of the work”

“The plaintiff, having failed to establish the necessary allegation that performance by him was prevented by the act of the defendant, cannot recover.”

Synopsis

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Thomas J. Lennon, Judge presiding at trial. J. J. Van Nostrand, Judge denying new trial.

The facts are stated in the opinion of the court.

SLOSS, J.

On November 3, 1905, the parties entered into a contract whereby the plaintiff, as contractor, agreed to construct for the defendant, as owner, a seven-story brick building upon a lot fronting on Seventh Street, in the city and county of San Francisco. The contract price was $45,927, payable in installments, as the work progressed.

Construction was commenced and continued until April 18, 1906, when the earthquake and fire which occurred on that

[660]

day partially destroyed the work done and the materials furnished by plaintiff under the contract. There had then been paid to plaintiff the first installment, amounting to $3,049, No further payment had become due. Work was never thereafter resumed under the contract.

In this action, brought to recover damages, the plaintiff, after setting forth the provisions of the contract, alleged that he had, up to April 18, 1906, expended $14,694.55 for work and materials furnished; that after April 18,

1906, he

was ready, able, and willing to proceed with the performance of his contract, but that defendant refused to permit him to so proceed, and prevented him from performing any of the work required to be performed by him under the terms of said contract. Damage in the sum of $14,694.55, together with the further sum of $6,500 for loss of profits, is alleged to have resulted. The answer denied all of these allegations except those relating to the making of the contract and its terms.

The court found that, in the performance of work under the contract, the plaintiff had expended $13,279.43. It found that, after the eighteenth day of April, 1908, the plaintiff' was not ready, or able, or willing to proceed with the performance of the work or the furnishing of materials under the contract; that defendant did not refuse to permit him to proceed, nor did the defendant prevent the plaintiff from performing his contract. .There is also a finding that plaintiff has not been damaged in any sum.

Judgment in favor of the- defendant followed. Plaintiff appeals from the judgment and from an order denying his motion for a new trial.

Anderson v. Quick

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Synopsis

SLOSS, J.

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