Clark v. Collier

California Supreme Court Nov 8, 1893 No. No. 13565Published

Before: Vanclief

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Holding. The court held that the plaintiff was not entitled to recover payment under a building contract because the work was not completed or delivered prior to the destruction of the building by fire, and the contract was an entirety.

Issues

Whether the plaintiff performed the conditions precedent for payment under the building contract before the building was destroyed by fire.
Whether the evidence supported the trial court's finding that the building was not completed or delivered to the defendant.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The contract is an entirety. There is nothing in it by which the price to be paid for any of the work or materials can be distinguished from that to be paid for any other part.”

“The court found that plaintiff had never finished, completed, nor delivered the house, and that defendant had never accepted it; and I think the evidence sufficient to justify this finding.”

Synopsis

Building Contract—Loss by Fire Before Completion.—Where, by the terms of a building contract, the third and last installments of payment for the work were conditioned upon its completion according to agreement and specifications, such installments cannot be recovered where the whole work is consumed by fire, without apparent fault of either party, before its completion.

Id.—Construction of Contract.—Where by the terms of the contract the contractor agreed to repair an old house and to build a new addition thereto to be attached to it, the old house to be turned partly around and placed on a new brick foundation, to be laid under both the old house and the new addition, there being nothing in the contract by which the price to be paid for any part of the work or materials could be distinguished from that to be paid for any other part, the contract is an entirety, and a provision that the third installment should be paid when the “ building” is completed according to the agreement and specifications refers to the whole building, including the old part and the new addition.

Id.—Incomplete Building.—Where the evidence shows that no part of the second coat of paint required by the contract had been put on; that the work-bench of the carpenters and the paint for the second coat were in the building at the time of- the fire; that two of the doors were unhung, and no fastenings put on the front door or windows; and that the house had not been delivered nor accepted, it cannot be held that the building was substantially completed before the fire.

In.—Extra Work—Conflicting Evidence—De Minimis.—Where the evidence was substantially conflicting as to the contractor’s claim for extra work upon which the court found for the defendant, except as to one door-lock, of the value of fifty cents, which, as compared with th« sum in contest, may be considered as de minimis, the finding will not be disturbed.

Vanclief, C. Action to recover a balance of $825 alleged to be due and owing from defendant to plaintiff on a written building contract; and also $50 for extra work. The cause was tried by the court. The judgment was in favor of the defendant. The plaintiff has appealed from the judgment and from an order denying his motion for a new trial.

By the contract the plaintiff agreed to repair an old house and to build a new addition thereto to be attached to it. The old house was to be turned partly round, removed from its old foundation, and placed on a new brick foundation, to be laid by plaintiff under both the old house and the new addition. The plans and specifications of the work to be done upon both the old and the new parts, to which the contract referred, are ordinarily minute. The defendant agreed to pay for the whole work $1,325, by installments as follows: “Old part placed in position, $200; foundation in and frame up, $300; inclosed and roof on, chimneys up, and the building completed according to agreement and specifications, $300. Balance to be paid on completion of [258]work, if not otherwise agreed upon by both parties hereto.”

As the work progressed the first two installments were paid; hut before further payment was made the whole house (old and new parts) was consumed by fire, without apparent fault of either party.

1. It is not contended that the plaintiff is entitled to recover either the third or last installment, unless the conditions stated in the agreement, upon which the third installment was to be paid, had been performed by plaintiff before^ the fire. But counsel for appellant contend that these conditions refer only to the new building; they say, “the old house was not to be inclosed, nor any roof put on, nor any chimneys put up.” Conceding this, it is not perceived that the effect would be as claimed by counsel, even if, as they contend, the old house was substantially completed before the fire; since no reason appears why the payment of installments may not have been conditioned upon work on the new part. But counsel are mistaken in regard to chimneys. A chimney was to be, built in'the old part. The contract specifies: “Old house to be moved and turned side to Taylor avenue; chimneys to be taken down and new one built, with wood fireplace, where shown on plan.” Besides, plaintiff testified that he understood “the terms ‘ building completed according to agreement and specifications/ to refer to the old house.” The contract is an entirety. There is nothing in it by which the price to be paid for any of the work or materials can be distinguished from that to be paid for any other part. The word “building,” in the condition upon which the third itistallment was to be paid, comprehends the new part, as clearly indicated by the condition of the first payment—“old part placed in position”—not old building placed in position. I think the trial court correctly construed the contract in this respect.

Clark v. Collier

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