Lozano v. Jollensten

FORD, J. This action arises out of a transaction between the plaintiffs, the owners of a trailer park, and the defendant contractor relating to electrical work to be done on the plaintiffs’ property. The work was not completed. The plaintiffs sued to recover a payment of $500 made to the defendant. The defendant filed a cross-complaint in which he sought to recover damages for breach of contract. The plaintiffs have appealed from a judgment in favor of the defendant and cross-complainant.

The findings of fact of the trial court were in part as follows : 1. On July 16, 1959, the parties entered into a written contract. 2. The contract provided in part as follows:

“1. . . . The Contractor shall furnish all of the materials and perform all of the work shown on the plans for electrical work necessary to re-wire the . . . trailer park .... 2. The work . . . shall be completed on or before the 20th day of August, 1959. . . .

[8478]. The total contract price shall be $6,491.96. Contractor hereby acknowledges receipt of the sum of $500.00 to apply on said contract price. . . .

9. . . . The parties shall forthwith enter into an escrow agreement at [a named company engaged in rendering the contemplated service] . . . wherein and whereby this contract shall be presented and based thereon the said escrow will set up its usual method of receipt of funds from the owner, the payment to the Contractor for his work of performance hereunder in the usual progress payments, including further the general terms contained in such an escrow agreement. . . .

10. In the event suit is brought by either party . . . the prevailing party . . . shall be entitled to recover reasonable attorney’s fees. ...”

3. '1 That on the 5th day of August, 1959, cross-defendants waived section 9 of said contract pertaining to an escrow agreement by authorizing cross-complainant to furnish a surety bond in lieu thereof, and that cross-complainant thereafter obtain [sic] said surety bond, which was applied for and issued within a reasonable time; that the parties thereby entered into an oral agreement modifying the written contract and that said oral agreement was executed, resulting in ■ a legal modification of said paragraph 9.” 4. The cross-

complainant was ready, able and willing to perform the contract but the cross-defendants refused to permit him to do so. 5. The cross-complainant was thereby caused to suffer a loss of profits in the sum of $320.96. 6. "That the cross-complainant ... delivered to the premises of the cross-defendants goods, chattels and equipment to be used in the performance of said contract costing $5,344.47; that part of said property was returned to the cross-complainant and that cross-complainant had previously received the sum of $500.00 from the cross-defendants as an advance payment of said property; that cross-complainant returned part of the property to his suppliers and received the sum of $1,061.42 and that cross-corn-' plainant sustained a net loss of $3,783.05.”