Rubino v. Board of Trustees

SCHOTTKY, J. Frank Rubino and Norman A. Gulliekson, copartners doing business under the firm name and style [367]of Rubino and. Gulliekson, have appealed from a judgment denying them recovery in the amount of $973.40 in an action brought against the Curtis Creek School District to recover for alleged extra work under a contract. The appeal is on the judgment roll.

In July 1957, Rubino and Gulliekson entered into a written contract with the Board of Trustees of the Curtis Creek School District in Tuolumne County for the construction of a school plant and a playground for the sum of $354,170. The original plans called for the playground to be perfectly flat, but the plans were changed to provide for the playground to be sloped. The change order also called for a change in the design in the drainage system. The plans for the project required that the contractor construct a 24-inch ditch around the perimeter of the playground area. The contractors, in accordance with the requirements of the plans, constructed a “V’’-shaped ditch along the west side of the playground for drainage purposes. Beyond the west side of the playground a pump was installed and in order to facilitate crossing the ditch one of the subcontractors placed a piece of 8-inch well easing in the ditch and covered it over to provide a path. This well casing was left in the ditch and not removed when the completed work was accepted on August 13, 1958. In January 1959, there were heavy rains in the area with the result that the upstream end of the well casing became clogged with silt and the ditch overflowed and washed out a portion of the playground.

The trial court found that “the proximate cause of the damage to the southwest corner of the playground area was the overflowing of the water from the ditch due to the inadequacy of the eight-inch well easing to carry the flow of the ditch.” The court found further that the school district “ordered Plaintiffs to repair the damage aforesaid in January, 1969 [sic], maintaining that this damage was caused through the fault of the Plaintiffs; that Plaintiffs disclaimed any responsibility for the damage but, without admitting liability or responsibility and because it was raining and in order to avoid additional damages, the Plaintiffs caused repairs to be made. ’ ’ The repairs cost $973.40 and this action was brought to recover this amount. As stated recovery was denied.

Appellants contend that acceptance of the work precludes recovery on behalf of the school district for any later discovered defects. Appellants rely on cases such as City Street Improvement Co. v. City of Marysville, 155 Cal. 419 [101