Dicco, Inc. v. Farrar

BARNARD, P. J. The plaintiffs, as joint venturers, had a contract with the State Highway Department for certain work on Highway 99, south of Bakersfield. They entered into a contract with the defendant by which he agreed to furnish “the aggregate and screenings” for this job, the estimated amount being 92,600 tons. The contract further provided [413]that the defendant should exercise due diligence to furnish a minimum quantity of 1000 tons of mineral aggregate per day. ’ ’

The plaintiffs installed a “hot plant” for the purpose of treating material supplied from the defendant’s rock crusher plant near by. During the earlier part of the contract period the plaintiffs’ “hot plant” had an unusual number of breakdowns, causing the defendant to shut down his rock crusher because of lack of storage space. During the latter part of that period the defendant’s rock crusher had an unusual number of breakdowns, causing the “hot plant” to shut down for lack of material. The defendant delivered to the plaintiffs a total of 95,577 tons. The plaintiffs’ contract with the state was completed and they were paid in full by the state. A balance of $7,691.72 was admittedly due to the defendant, unless the plaintiffs had a valid claim against him for damages.

The complaint alleged that the plaintiffs had fully performed, but that the defendant had failed and refused to perform his agreement to furnish a minimum of 1,000 tons of material per day; that on many occasions he had failed to furnish any material for a period of one to three days.; that as a consequence of his failure to thus comply with his agreement the plaintiffs had incurred a loss of time of 37 days during the contract period; and that the plaintiffs were thereby damaged in the sum of $18,500. The defendant answered, denying that he had refused to comply with the agreement, and alleging that he had at all times used due diligence in that regard ; that at times when his plant broke down he had used all of his abilities and worked his crews 24 hours a day in making repairs; that the plaintiffs had at times urged him to exceed 1,000 tons per day, and on many days he had delivered 1,600 tons per day; and that for three fourths of the contract period he had delivered an average of 1,078 tons per day. He also filed a cross-complaint seeking to recover the balance of the contract price for the material furnished.

The court found that the material allegations of the complaint were not true, except that it was true that the defendant did not furnish a minimum of 1,000 tons of material per day. In effect, the court found that the defendant had not violated the agreement, and that the plaintiffs had not been damaged as the result of any such violation. The court found in favor of the defendant on his cross-complaint and entered judgment in his favor, from which the plaintiffs have appealed.