Cal. Metal Enameling Co. v. Waddington

Opinion

COBEY, Acting P. J. —Plaintiff, California Metal Enameling Company, a California corporation, appeals from a summaiy judgment entered in favor of defendants, Dean Waddington, doing business as Granite Glass Company,- and Kaiser Foundation Hospitals, in its action against them to foreclose a mechanics lien and for damages for breach of contract. The appeal lies. (Code Civ. Proc., § 437c.)

Plaintiff, in its briefs, however, challenges only the summaiy judgment in favor of Dean Waddington.1

Facts

On or about September 6, 1973, plaintiff submitted a written quotation to defendant covering the fabrication of laminated panels to be used in an addition to the Kaiser Hospital at Bellflower, California. This quotation was subject to acceptance on or before September 30, 1973, and the price quoted was based upon the fabrication being done before June 1974.2 In response to this quotation defendant issued on or about November 14, 1973, its purchase order No. 5466.

[394]Apparently plaintiff’s fabrication of the laminated panels was done after June 1974 and more panels of a greater thickness were delivered than were called for in the 1973 quotation. The square footage involved, though, was apparently less. Furthermore the parties to the transaction differed as to exactly how many panels were delivered and according to defendant the delivery of the panels was late because of defective steel. Furthermore plaintiff submitted two new quotations for the panels in May 1975. These called for a greater number of panels at a higher price. According to defendant, he accepted these later quotations because plaintiff indicated that it would furnish no more panels to him without such acceptance.3

On or about July 21, 1975, defendant sent plaintiff a check in the amount of $25,393.14, marked on the front “for Kaiser Hosp.Bellflower” and bearing on its back the following typewritten indorsement “Endorser acknowledges full payment for material furnished Kaiser Hospital-Bellflower—(P.O. #5466 dated 11-14-73 plus 6% sales tax added) and releases all mechanic’s lien, stop notice, equitable lien & material bond rights.” Plaintiff received and, by stamp, indorsed this check for deposit in its bank account on July 25, 1975. The two persons who handled this check and who photocopied both sides of it for plaintiff failed to see this indorsement.