1st Olympic Corp. v. Hawryluk

• Citation: 8 Cal.Rptr. 728,185 Cal.App.2d 832
• Court: California Court of Appeals Court of Appeals
• Decision Date: 31 October 1960
• Parties: IST OLYMPIC CORPORATION, a Callfornia corporation, Plaintiff and Respondent, v. Lee HAWRYLUK, Defendant and Appellant. Civ. 6443.

Page 728

8 Cal.Rptr. 728

185 Cal.App.2d 832

IST OLYMPIC CORPORATION, a Callfornia corporation, Plaintiff and Respondent, v. Lee HAWRYLUK, Defendant and Appellant.

Civ. 6443.

District Court of Appeal, Fourth District, California.

Oct. 31, 1960.

Thomas Whelan and Ray Miller, San Diego, for appellant.

Rubin, Seltzer & Solomon and Herbert J. Solomon, San Diego, for respondent.

COUGHLIN, Justice.

This is an action involving a written contract for the alteration and improvement of a house; an oral agreement for the furnishing of 'extras' in connection therewith; and the foreclosure of an incident mechanic's lien. By its amended complaint the plaintiff, as contractor, alleged the execution and performance of a written contract by which the defendant was required to pay it $10,600, and upon which there was an unpaid balance of $4,100; alleged the furnishings of 'extras' of the reasonable value of $1,120; and also alleged the filing of a mechanic's lien for the total unpaid sum of $5,220. By her answer, the defendant, as owner of the premises, denied performance of the written contract by the plaintiff; denied that any 'extras' were furnished at her request; alleged that the work was not done in a workmanlike manner and that the material furnished was defective; and, by a cross-complaint, sought damages allegedly arising out of the plaintiff's failure to properly perform and also for alleged negligence of the plaintiff which she claims resulted in damage to her property.

The principal issue presented to the trial court for determination was whether the plaintiff had performed its part of the contract in a good and workmanlike manner. Evidence pro and con upon this issue was received by the court. In addition, the trial judge, pursuant to stipulation, viewed the premises where the work had been done.

In due course judgment was entered in favor of the plaintiff in the sum of $4,370, being $850 less then it claimed was due. From this judgment the defendant has appealed, contending that the court failed to find upon material issues presented by the pleadings; that some of the findings made are improper because they are ambiguous and uncertain; that certain findings are not supported by the evidence; that the court erred in allowing for 'extras' under the claim of an executed oral contract; and further erred in limiting its consideration of the alleged defects in plaintiff's work to those outlined in letters between counsel, apparently considered as a stipulation upon the subject.

It is apparent from the record that the basis for the trial court's decision was its conclusion that the plaintiff had substantially although not fully performed the contract, and that defendant could be compensated for plaintiff's failure to fully perform by the allowance of an $850 offset. As a consequence, judgment was rendered in a sum $850 less than the amount plaintiff would have been entitled to under the contract and for the 'extras' furnished if there had been full performance.

The objections made to the findings are interwoven and will be considered together. Objections to alleged errors with respect to the judgment for 'extras' and limiting a consideration of the defects to those mentioned in the letters heretofore noted, will be considered separately. Primarily, however, the general principles of law applicable under such circumstances should be considered. It is now the settled rule, especially in cases of building contracts, that 'if there has been a substantial performance thereof by the contractor in good gaith, where the failure to make full performance can be compensated in damages, to be deducted from the price or allowed as a counterclaim, and the omissions and deviations were not willful or fraudulent, and do not substantially affect the usefulness of the building for the purposes for which it was intended, the contractor may, in an action upon the contract, recover the amount unpaid of his contract price less the amount allowed as damages for the failure in strict performance.' Thomas Haverty Co. v. Jones, 185 Cal. 285, 289, 197 P. 105, 107; Atowich v. Zimmer, 218 Cal. 763, 768, 25 P.2d 6; Punton v. Sapp Bros. Construction Co., 143 Cal.App.2d 696, 700, 300 P.2d 271. What constitutes substantial performance 'is usually a question to be determined in ezch case with reference to the existing facts and circumstances.' Connell v. Higgins, 170 Cal. 541, 556, 150 P. 769, 775; Pacific Allied v. Century Steel Products, 162 Cal.App.2d 70, 77, 327 P.2d 547.

In the case at bar the trial court found that the 'work performed by the plaintiff pursuant to said contract, was in substantial compliance with the terms of said contract and the plans and specifications referred to therein.' There is substantial although conflicting evidence in the record which supports this finding.

'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' Primm v. Primm, 46 Cal.2d 690, 693, 299 P.2d 231, 233.

An application of the foregoing rule to the record evidence in this case disposes of defendant's contention respecting the insufficiency of the evidence to sustain the aforesaid finding. Moreover, in arriving at a decision herein the trial judge was entitled to consider what he saw when he visited the premises. Gates v. McKinnon, 18 Cal.2d 179, 183, 114 P.2d 576; Hicks v. Whelan an Drug Co., 131 Cal.App.2d 110, 115, 280 P.2d 104; Rowland v. City of Pomona, 82 Cal.App.2d 622, 624, 186 P.2d 447. A record of what he saw has not been made a part of the transcript on appeal and, under established principles, an appellate court must assume that the evidence acquired by such a view is sufficient to sustain the finding in question. Estate of Sullivan, 86 Cal.App.2d 890, 895, 195 P.2d 894; Ng v. Warren, 79 Cal.App.2d 54, 57, 179 P.2d 41.

The defendant points to other findings; concludes that they are uncertain and contradictory; and contends their insufficiency affects the judgment, and requires its reversal. Particular stress is placed upon a finding that 'most of the work performed by plaintiff pursuant to said contract and in furnishing said extras to defendant was done in a good and workmanlike manner.' (Emphasis added.) It is urged that the term 'most' is indefinite and renders the finding uncertain. On the other hand, as heretofore noted, the court found that the work performed by the plaintiff was in substantial compliance with the contract. The defendant claims that the latter finding is in the nature of an omnibus finding and is ineffective for any purpose, citing Maulhardt v. California Director of Public Works, 168 Cal.App.2d 723, 730, 336 P.2d 631. This contention is without merit. The court also found as true the allegations in plaintiff's complaint that it had performed all of its obligations under the contract. Proof of substantial performance sustains an allegation of full performance. Shell v. Schmidt, 164 Cal.App.2d 350, 356, 330 P.2d 817; Punton v. Sapp Bros. Construction Co., 143 Cal.App.2d 696, 700, 300 P.2d 271; Joseph Musto Sons-Keenan Co. v. Pacific States Corp., 48 Cal.App. 452, 458, 192 P. 138. Although repetitious, there is no inconsistency between the finding of substantial performance and the finding that most of the work performed by the plaintiff was done in a good and workmanlike manner. The use of the term 'most', by itself, is not sufficiently precise, but when considered with the other findings, is not uncertain. Even though repetitious and lacking precision in the one instance, nevertheless, when considered as a whole the findings adequately express the decision of the court that the plaintiff substantially performed the contract. The intention to so find is made manifest when the written opinion of the trial judge is considered. It is there stated that:

'From all of the evidence, including the Court's inspection of the premises, it is found that certain defects did and still do exist in the work performed by the plaintiff.

'* * * defendant is entitled to some offset because of faulty workmanship, and without detailing the defects or the reasonable value to repair them, they are considered in a final judgment to be awarded to plaintiff.'

Althouth the opinion of the trial judge may not be used to impeach, modify or add to his findings (Strudthoff v. Yates, 28 Cal.2d 602, 615, 170 P.2d 873; Goldner v. Spencer, 163 Cal. 317, 320, 125 P. 347; Haynes v. Buckley, 165 Cal.App.2d 96, 101, 331 P.2d 693; Oldis v. LaSociete Francaise, etc., 130 Cal.App.2d 461, 473, 279 P.2d 184), it may be considered for the purpose of discovering the process by which he arrived at his conclusion (Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740, 750, 47 P.2d 273), and as an aid in interpreting these findings where interpretation is necessary. Moore v. Ojai Improvement Co., 152 Cal.App.2d 124, 128, 313 P.2d 47; Arvin-Kern Co. v. B. J. Service, Inc., 178 Cal.App.2d 783, 3 Cal.Rptr. 238. Considering the whole record, it is clear that the court decided the principal issue in controversy, i. e., that of performance of the contract, by deciding that the plaintiff had substantially performed.

In accord with the general rule respecting substantial performance, the court also decided that the plaintiff should not recover the full measure of the contract price. In this regard it found that the defendant was indebted to the plaintiff in the sum of $4,370 as the balance due under the contract and for the 'extras' furnished. This was $850 less than the amount prayed for, i. e.,...