Poles v. Glass

DRAPEAU, J. Plaintiff, Barnett B. Poles, entered into a written agreement with defendant, Simon Glass, to perform services as general construction supervisor and construction superintendent of a building that Mr. Glass intended to construct. Then Mr. Glass built a 10-unit apartment building, but he did not tell Mr. Poles anything about it. When Mr. Poles learned that the building had been completed with[509]out his services, he demanded payment as provided in the agreement. Mr. Glass refused to pay him anything. In this action for breach of the contract, the trial court found in favor of Mr. Poles, and Mr. Glass appeals from the judgment.

Mr. Glass contends that there was no consideration for the agreement; that it is uncertain, indefinite, ambiguous, and lacking in mutuality, and unenforceable for those reasons; that Mr. Poles released Mr. Glass from any and all obligation under the agreement; that the building as constructed did not establish a breach of the contract, in view of the use of the word “only” as it appears in the writing; that the trial court should have allowed something in mitigation of damages; and that in some respects the findings do not support the judgment.

Portions of the agreement essential to an understanding of the controversy are as follows:

“Glass hereby agrees to hire, and Poles hereby agrees to be engaged by Glass, as general construction supervisor and construction superintendent on the next immediate construction project of Glass only or by any association or corporation that Glass has an interest in.

“The duties of Poles shall be that of General Superintendent of the job, procuring bids from sub-contractors, coordinating the work of the sub-contractors, and cooperating with the engineers and architects that may be employed.

“Por his services aforesaid, Glass shall pay to Poles a sum equal to ten (10%) percent of the total net cost of construction. The total net cost of construction shall be deemed to include material and labor used in construction thereof.”

Mr. Glass’s contention that the agreement is without consideration is untenable. His answer to the complaint admitted the due execution of, and consideration for the agreement. On the trial he stated that he made no claim of lack of consideration as a defense.

In addition it may be said that the agreement itself is presumptive evidence of consideration. (Civ. Code, § 1614; Payne v. Crossley, 115 Cal.App.2d 72, 75 [251 P.2d 675].)