DocketNumber: Docket No. 5030.
Citation Numbers: 246 P. 150, 77 Cal. App. 137, 1926 Cal. App. LEXIS 325
Judges: Cashin
Filed Date: 3/18/1926
Status: Precedential
Modified Date: 10/19/2024
An action for damages upon a contract for the construction of additions to a building.
Judgment was entered for plaintiff, from which defendant has appealed upon the judgment-roll, his grounds for reversal being that the action was not one upon a contract, obligation, or liability founded upon an instrument in writing, as found by the trial court, and was therefore barred under subdivision 1 of section 339 of the Code of Civil Procedure.
It was found, in accordance with the allegations of the complaint, that a contract in writing was entered into between the parties, by which appellant agreed to construct certain additions to a garage owned by respondent; that the latter paid a portion of the consideration for performance; that appellant partially performed, but failed of full performance, to the damage of respondent in the sum of $300. It was further found that the writing hereinafter considered was executed by appellant alone and was the *Page 139 only writing between the parties. The evidence taken at the trial was not brought up on appeal.
It is contended by appellant that the language of the writing is not sufficient to express the terms of a contract or create an obligation or liability within the provisions of subdivision 1 of section 337 of the Code of Civil Procedure. The material portions of the writing are brief. Following the initial paragraph, which read "General Conditions and Specifications for construction of sun porch for garage," was set forth a detailed description of the work to be done and the materials to be used, concluding with the following: "Price complete $685." "Double French doors in rear of house, $78," the writing being subscribed by appellant. The trial court construed this writing to express a promise to perform the work described in consideration of that of respondent to pay upon completion of the work the sum therefor stated therein. [1] The intention not being clear from the language of the writing, for its proper construction the circumstances under which it was written might properly have been considered by that court (Civ. Code, sec.
[3] Aside from any facts and circumstances which may have been considered by the trial court in that connection, it appears to us as a fair conclusion that by the use of the words "general conditions" was meant the conditions under which appellant was willing to perform, namely, an acceptance by respondent and the payment of the price fixed therefor; and that the word "specifications" — the meaning of which is well settled in connection with building contracts — referred to the detailed statement of the materials to be used and the manner of performing the work (Nave v. McGrane, 19 Idaho, 111 [113 P. 82, 85]; Fowler v. Bushby, 69 Misc. Rep. 341 [125 N.Y. Supp. 890]). While the cause of action is not founded upon an instrument in writing within the meaning of subdivision 1 of *Page 140
section 337 of the Code of Civil Procedure, unless the writing contain the promise for the nonperformance of which the action is brought (Scrivner v. Woodward,
[5] The defense that the action was barred under the provisions of subdivision 1 of section 339 of the Code of Civil Procedure was pleaded by the answer, upon which plea the court found against appellant. It is contended by the latter that the court, having expressly found that the contract was in writing, and that the only writing executed by either party was that signed by appellant, it follows that the finding on the plea mentioned was based solely upon the conclusion of the court that the writing was an instrument within the meaning of subdivision 1 of section *Page 141
337 of the Code of Civil Procedure. We cannot say, however — the evidence not being before us — that this finding was not otherwise supported by evidence adduced at the trial. That a contract for the work described at the price mentioned was entered into by the parties is admitted by the pleadings, one of appellant's defenses to the action being that the contract was oral, and therefore barred by the statute. As said in Murphy v.Stelling,
The judgment is affirmed.
Tyler, P.J., and Knight, J., concurred.