Pierce v. Nussbaum

California Court of Appeal Dec 16, 1948 No. Civ. No. 3847Published

Before: Griffin

AI Brief

AI-generated · verify before citing

Holding. The court affirmed the judgment, concluding that the trial court correctly determined that the parties' agreement was not limited to a $15,000 cost cap and that the total amount owed to the plaintiff was offset by payments and credits already made by the defendant.

Issues

Whether the writing of October 15 constituted a binding guarantee or limitation on the total cost of the grading and leveling work.
Whether the trial court erred in its interpretation of the contract and its findings regarding the amounts owed and paid between the parties.

Disposition. affirmed

GRIFFIN, J. Plaintiff and appellant brought this action for $13,830.60, based upon three separate counts for a claimed balance due for leveling and grading certain land consisting of 200 acres near Indio which belonged to defendant and respondent Nussbaum.

The first count is based upon a certain pleaded contract. The second and third counts are based upon the reasonable value of services performed and upon an account stated. The written contract, dated August 9, 1945, consists of a letter written by plaintiff to defendant and signed by both parties. It provides as follows:

“This will confirm our verbal agreement, terms of which we quote herewith:

“O. H. Pierce shall proceed with engineering work, establishing grades as per specifications supplied by yourself or agent on that portion of land described as S % and SB [4] of NE14 Sec. 27, T6S-R7E. This work shall be paid for by you at the rate of $3.00 per acre and shall not exceed the sum of $600.00, regardless of the time necessary to bring the tract to finished grade.

“O. H. Pierce shall provide necessary equipment and operators and proceed in a diligent and workmanlike manner to complete clearing and grading said tract to your specifications. It is understood and agreed that the rates paid by yourself for fully operated equipment supplied and operated by O. H. Pierce shall be as follows:

“Equipment Per Hour D-8 Cat & Scraper $10.80 D-8 Cat Dozer & Rooter 9.17 30-Cat with Float and/or Disc and/or rake 5.50

“It is further understood and agreed that payment shall be made to C. H. Pierce as follows:

“75% of the cost of time hours worked, to be paid every two weeks until work is completed, at which time, when grades have been checked by instrument, with yourself or agent present, balance shall be paid in full. Records will be kept by O. IT. Pierce and submitted at the end of every two weeks, showing actual operating time of equipment.

“For any hand labor which may be decided by yourself and G. H. Pierce to be necessary for removal of roots, burning, etc., such labor shall be kept under separate account and [191]

Pierce v. Nussbaum

AI Brief

More from California Court of Appeal

Related research

AI Brief