California Steel & Construction Co. v. Speicher

NOURSE (Paul), J. pro tem.* By its complaint in this action respondent sought to recover the purchase price of a prefabricated steel building sold by it to appellant under a written contract of sale. The complaint alleged that appellant, as buyer, and respondent, entered into a written contract (a copy of the contract is attached to the complaint and incorporated by reference), whereby respondent undertook to manufacture for appellant a steel building and erect the same on appellant’s property at and for the price of $3,234; that respondent manufactured said building and offered to install it on appellant’s property, but that appellant refused to accept delivery or pay any part of the purchase price; that the building was specially manufactured and not salable to others in the ordinary course of business and that after appellant refused to accept delivery respondent notified her that it was holding the building as her bailee.

Appellant, by her answer, admitted the execution ■ of the contract and that she had made no payments thereunder; she denied the other material allegations of the complaint and alleged that contemporaneously with the execution of the written contract the parties had orally agreed that it should not be effective until she gave respondent notice to [241]commence fabrication. By an affirmative defense, she alleged that respondent had represented that the building, when installed upon her real property, could be used for certain purposes; that under the ordinances of the city of Pasadena it could not be used for those purposes and that respondent had been refused a permit to erect the building on appellant’s property for such use.

The allegations of the affirmative defense were not sufficient to constitute a charge of fraud and appellant did not, at the trial, claim that they were, but asserted the facts alleged constituted a warranty.

The trial court found that respondent had performed all of the terms of the contract on its part to be performed, except the installation of the building on appellant’s real property and the securing of a permit for such installation .• that appellant had refused to permit respondent to instal the building and had, by her own acts, prevented respondent from securing the necessary permit; that the parties had not agreed that respondent should not commence fabrication of the building until told so to do by respondent; that it would have cost respondent to install the building upon appellant’s property the sum of $464, which amount it was not required to expend. The trial court gave judgment for respondent for the contract price, less said installation cost, plus interest and attorney’s fees, as provided in the contract.