Hayes v. 2831 Ellendale Place, Inc.

WOOD, P. J. The complaint alleges that defendant corporation became indebted to plaintiff Stephen Hayes for building construction services rendered at the special request of defendant, in the reasonable value of $7,500, and that no part thereof has been paid.

The eighth alleged affirmative defense is that the alleged cause of action is barred by the statute of limitations, section 339, subdivision 1, of the Code of Civil Procedure (i.e., action on oral contract barred within two years).

Pursuant to section 597 of the Code of Civil Procedure, and upon motion of defendant, the issue as to the statute of limitations was tried first. The court determined that the cause of action was barred by said provision of the statute of limitations. Plaintiff appeals from the judgment.

Plaintiff, a licensed contractor, testified that: Between October 1, 1957, and June 1, 1958, he acted as the general building contractor in constructing, for defendant, a 24-unit apartment building at 2831 Ellendale Place in Los Angeles. That the reasonable value of the labor performed and materials used in constructing the building (including the demolition of an old building) was $75,149.48. He did not render any service for defendant after June 1, 1958.

Two building contractors, who were qualified to give opinions as to the reasonable value of services rendered by building contractors, and who were called as witnesses by plaintiff, testified as to the reasonable value of a general contractor’s services in constructing the building involved here. Later, upon motion of defendant, the testimony of these two witnesses was stricken out.

The joint pretrial statement shows that the parties admitted that the plaintiff Stephen Hayes and George Latter (as contractors) entered into a written contract with defendant corporation (as owner) for the construction of the building, which contract is attached as “Exhibit A” to the defendant’s cross-complaint herein. That statement also shows that the building was completed on May 12, 1958. Plaintiff Hayes introduced that contract in evidence.

• Said contract recites, in part, as follows: The contract was made on' October 25, 1957, between 2831 Ellendale Place, [364]Inc., a corporation, referred to therein as the “Corporation,” and George Latter and Stephen Hayes, referred to therein as the “Contractors.” The contractors, upon payment to them of $37,500, will convey to the corporation the real property located at 2831 Ellendale Place. The contractors will construct an apartment building on said property, according to the plans and specifications (referred to therein), at the contractors’ cost. The corporation will pay all future bills for materials, labor, or otherwise arising out of “said improvements.” The contractors shall have the exclusive right, for the first six months after the completion of the building, to select a real estate broker to sell the building at a price that may be agreeable to the parties to the contract. In the event the broker selected by the contractors does not sell the building within said six months, the corporation may, at its discretion, sell the building or retain another broker to sell it for the highest price obtainable and mutually agreeable to all the parties to the contract. The contractors shall be paid 50 per cent of the net profits realized on the sale of the building as compensation for their services—25 per cent of said profits to be payable to Latter and 25 per cent to be payable to Hayes. The net rentals from the building shall be considered as part of the net profits. The contractors agree that, except as provided in the contract, they will make no other charge to the corporation for any services rendered by them in connection with the construction of the building.