Golden Gate Lumber Co. v. Sahrbacher
Before: Garoutte
Synopsis
Building Contract—Right of Contractor to Abandon Work.—Nonpayment of an installment price when due is such a breach of the contract as to justify a contractor in leaving the work and recovering upon a quantum meruit, but if the contractor has not performed the contract according to its terms when he demands payment of an installment, then it is not due, and he is not justified in leaving the work.
Id,—Effect of Abandonment without Cause—Mechanics’ Liens.—If the contractor leaves the work without cause it is an abandonment of the contract such as is contemplated by section 1200 of the Code of Civil Procedure, and the rights of materialmen and subcontractors will will be measured by the provision of that section.
Id.—Material Departure from Specifications.—Where the contract called for lathes one and one-quarter inches wide, and lathes one and one-half inches wide were used, and the contract called for No. 1 rustic and the best quality of joists and studding, and the contractor used second quality of joist and studding and No. 2 rustic, there is a substantial and material departure from the specifications of the contract.
Id.—Breach of Contract—Evidence—Fair Average Job.—The evidence of carpenters and architects to the effect that, as far as the work had progressed at the time the contractor had left the building, it was a fair average job for that class of building, does not meet the issue made as to whether there was a substantial breach of the contract.
Id.—Refusal to Hear Oral Arguments—Privilege to File Briefs— Discretion.—The court, in deciding a case, has a right, in the exercise of its discretion, to decline to hear oral arguments of the case and to give the attorneys the privilege of filing briefs instead.
Id.—Costs—Percentage.—In an action to foreclose liens of materialmen and subcontractors in the city and county of San Francisco the plaintiffs, as the prevailing parties, are entitled to recover as costs the percentage on the amount recovered fixed by the act of February 9, 1866.
Garoutte, J. Plaintiffs recovered judgment as materialmen and subcontractors foreclosing liens upon the building of defendant, and this appeal is taken from the judgment and order denying the motion for a new trial.
The contract price was four thousand dollars, payable in four equal installments as the work progressed. [116]The first payment was due when the building was framed, and the second payment when the brown coat of mortar was on. In due time the contractor received his first installment of the contract price, and, when the brown coat of mortar was on, demanded payment of the second installment. The owner refused to make the second payment, and thereupon the contractor declined to proceed further with the work, and the building was subsequently finished by third parties. Nonpayment of an installment of the contract price when due is such a breach of the contract as to justify a contractor in leaving the work and recovering upon a quantum meruit. (Porter v. Arrowhead Reservoir Co., 100 Cal. 500.) Was the contractor entitled to receive the second installment of money? In other words, was the second installment due? And the answer to that interrogatory is solely dependent upon a determination of the fact as to whether or not the contractor had progressed with the building according to the plans and specifications, to the extent of having placed the brown coat of mortar thereon. If he had done so he had the legal right to stop work when the second installment was not forthcoming; but, if he had not performed the contract according to its terms at the time he demanded the second installment, then it was not due, and he was not justified in leaving the work; and if he left the work without cause it was an abandonment of the contract, as contemplated by section 1200 of the Code of Civil Procedure, and the plaintiffs’ rights in this action would be measured by the provisions of that section.
Upon an examination of the evidence we conclude that the contractor failed to comply with the terms of his contract in substantial particulars, and, having committed breaches of ,the contract, he was not justified in leaving the work as he did leave it. It follows from this conclusion that the finding of the court that the contractor had duly performed all the terms and conditions of said contract upon his part up to the tenth day of March, 1892, fails for want of support in the evidence.
[117]
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