Hartung v. Pollastrini

VAN DYKE, P. J. Dino Pollastrini, Ales Maul, Maul and Pollastrini, a partnership, and Harrison Wiggins appeal from the judgment against them upon the plaintiffs’ complaint and upon their cross-complaints.

The Hartungs, the respondents, own a ranch in Merced County, comprising 220 acres of land. They entered into an oral agreement with the partnership, Maul and Pollastrini. The trial court made findings concerning the contract which include the following: Maul, Pollastrini, and the partnership, all referred to hereafter as Pollastrini, agreed to prepare the Hartungs’ land so that it could be irrigated; to sow the land with grasses suitable for permanent pasturage; and to complete the work by December 1, 1952. The Hartungs agreed to pay Pollastrini in cash any reasonable amounts he might charge. Payments were to be made when called for. It was further agreed that Pollastrini should investigate and [90]determine what type or mixture of seed would be most successful in that locality to produce permanent pasturage for raising and feeding white-faced Hereford cattle for sale. Pollastrini was to designate and employ any person he wished as surveyor, but the Hartungs were to pay the surveyor any reasonable amounts he might charge. The court found that Pollastrini began work on September 1, 1952, but did not complete it by December 1, 1952, as agreed; that frequently after December 1, 1952, and until about March 5, 1953, the Hartungs protested that the work was not completed and demanded that Pollastrini complete it as soon as possible; that on all such occasions Pollastrini promised to increase his efforts to finish the work in a short time, promised to use more men and equipment but did not do so; that these promises made after December 1st were made without any intention of performing them in order to induce the Hartungs to refrain from terminating the contract for breach; that as a result the Hartungs were induced to and did refrain from terminating the agreement until March 5, 1953, when the Hartungs terminated the contract for breach and employed others who completed the job. The court found that the Hartungs had performed their part of the obligation in all particulars, and that, as a result of the breach by Pollastrini, the Hartungs had been delayed in growing permanent pasture for a period of about five months to their damage in the amount of $3,000. The court also found that Pollastrini had received $20,255 for the work that he had done; that the reasonable value of the work was $11,755, and that the Hartungs had been damaged in the amount of $8,500 by the overpayment. As to appellant Wiggins, who was the surveyor selected by Pollastrini, the court found that he had been paid $1,215 for his services, which exceeded the reasonable value thereof by $515, and judgment was rendered against him for that amount.