Alexander v. Hammarberg

• Citation: 230 P.2d 399,103 Cal.App.2d 872
• Court: California Court of Appeals Court of Appeals
• Decision Date: 28 April 1951
• Parties: ALEXANDER et al. v. HAMMARBERG et al. Civ. 14649.

Page 399

230 P.2d 399

103 Cal.App.2d 872

ALEXANDER et al. v. HAMMARBERG et al.

Civ. 14649.

District Court of Appeal, First District, Division 1, California.

April 28, 1951.

Hearing Denied June 25, 1951.

Oswald G. Ingold, Henry Poppic, Berkeley, for appellant.

Norman Elkington, San Francisco, for respondents.

PETERS, Presiding Justice.

The Alexanders, who are the plaintiffs and respondents, desired to build a house on a lot owned by them in Berkeley. Hammarberg, the defendant and appellant, who is an architect, was employed by the Alexanders to draw plans and specifications for the proposed house, and later employed to supervise its construction. Rahlves and Rahlves, building contractors, hereafter referred to as Rahlves, contracted with the Alexanders to construct the house according to the plans and specifications prepared by Hammarberg. Shortly after the Alexanders moved into the completed house they discovered that the floors were not level, the plaster cracked, and other defects appeared, all caused by a sinking and cracking of the foundations. It was then discovered that the front foundations had been placed on loosely filled dirt and not in the solid earth as called for by the plans and specifications. The Alexanders, although they had signed a notice of completion on the advice of Hammarberg, refused to make the final payment to Rahlves, who filed a mechanic's lien and a suit to foreclose. The Alexanders filed an answer denying liability, and a counter-claim and cross-complaint setting up a cause of action for negligence against Rahlves. The Alexanders also filed an independent suit against Rahlves and Hammarberg. This complaint set forth two causes of action against Rahlves, one in negligence and the other for rescission. It also set forth two causes of action against Hammarberg, one for negligence in the preparation of the plans and in supervising construction, and the second for rescission. The Alexanders moved to consolidate the foreclosure action with their action. This motion was granted. When the consolidated actions were called for trial, Rahlves moved that the Alexanders be compelled to elect between their cause of action for negligence and their cause of action for rescission. This motion was also granted. The Alexanders elected to stand on their negligence counts, and dismissed the rescission counts against all parties. Hammarberg then moved for a severance of the cause of action against him from that stated against Rahlves. This motion was predicated on the theory that the liability of Rahlves and Hammarberg, as disclosed by the pleadings, was several and not joint, that the issues against both defendants were not the same, and that to try both actions together would be prejudicial to Hammarberg. This motion of Hammarberg for a severance was granted. The actions between Rahlves and the Alexanders were tried first. This trial resulted in a judgment that Rahlves were entitled to the balance due them under their construction contract, namely, $2,720, and the Alexanders were entitled to $2,027.45 as reimbursement for the cost of remedying defects caused by the negligence of Rahlves. Thus, the net result of this action was a judgment for Rahlves in the amount of $692.55.

The the action involving only Hammarberg and the Alexanders was tried before a jury. That is the present case. The trial court instructed that, should the jury find for the Alexanders, they should first deduct the amount of the damages already allowed the Alexanders in the case against Rahlves. The jury brought in a verdict in the amount of $4,972.55, which, when added to the judgment in the Rahlves case, indicates that the jury fixed the total damage to the Alexanders at $7,000. Hammarberg had made motions for a nonsuit and directed verdict, which were denied, as was his motion for a judgment notwithstanding the verdict. Judgment was entered in accordance with the verdict, and Hammarberg appeals. He makes three main contentions:

1. That the trial court should have granted the three motions mentioned above because, so it is asserted, the evidence establishes that Rahlves and Hammarberg are joint or concurrent tort-feasors; that for this reason the satisfaction of judgment filed in the Rahlves case constituted the release of a joint or concurrent tort-feasor, which, as a matter of law, released Hammarberg;

2. That the three motions should have been granted because, so it is urged, the subject matter of this action is the same as that involved in the Rahlves case, and the first adjudication estops theAlexanders from securing any recovery against Hammarberg; and

3. That the trial court erred in refusing to give, in modifying, and in giving certain instructions.

The pertinent facts are that in late July of 1947 the Alexanders hired Hammarberg to prepare plans and specifications for a house to be built on a hillside lot in Berkeley, and a contract was executed whereby the architect was to receive four per cent of the estimated cost of construction as his fee for this service. This contract did not include any agreement for supervising construction by Hammarberg, it being agreed that such service, if desired, would cost an additional four per cent. Hammarberg drafted the plans and specifications and was paid $490 for this service. Thereafter, the Alexanders entered into a building contract with Rahlves, building contractors, who agreed to construct the building according to the plans and specifications for $13,600. Construction started in the fall of 1947. Shortly thereafter the Alexanders consulted Hammarberg and asked him if he would take over supervision of the construction. They testified that he agreed to undertake supervision of the construction. Admittedly, they subsequently paid him, by a series of checks, a total of $441.10. Hammarberg testified that these payments were for advice and not for supervision. He admitted, however, that Mrs. Alexander had requested him to take over the supervision of construction, and that he had never talked with her or her husband about simply giving advice. Nevertheless, he insisted that he had not agreed to supervise. This conflict, if there be a conflict on the issue, has been resolved against him by the trial court. The evidence overwhelmingly supports the implied finding of the jury that Hammarberg contracted to supervise construction.

There is no doubt that Hammarberg did supervise to some extent. Within a day or two of this last agreement between the Alexanders and Hammarberg, Mr. Alexander reported to the architect that he had seen workmen putting in inadequate trenches, and placing foundation forms on loose earth fill. Hammarberg said 'I can't believe it,' but promised to straighten the matter out. A day or two later he informed Alexander that he had been out to the job, had seen one of the builders, and that everything had been fixed up. Hammarberg admitted that he had visited the property and had then instructed one of the builders to place the foundations on solid ground, that the builder had agreed to do so, but that he made no further examination to ascertain if his instructions had been carried out. The plans and specifications called for the west or front foundations to be a minimum of six inches, and a maximum of eighteen inches below the natural ground level. Hammarberg admitted that the west foundation was in fact constructed on loose earth from eighteen to twenty inches above the natural ground level.

Hammarberg admitted that it is the custom for a supervising architect to check the foundations, and admitted that all that he did was to talk about it to the men on the job. He testified that he had 'told the men to go ahead and pour when the foundations were, in fact, 18 inches above ground level, natural ground level' and answered 'That is right' to the question 'if you had not told the concrete men to pour concrete in forms, the bottoms of which were 18 inches above the natural ground level, this thing would not have taken place, would it?'

After the house was completed Hammarberg presented to Alexander, and advised him to sign, a notice of completion. This was signed by Alexander. The Alexanders moved into the house on March 24, 1948, and shortly thereafter noticed that rugs and furniture had a tendency to slide toward the front of the house. An inspection disclosed sloping floors and cracks in the plaster, which condition continued to get worse, and shortly thereafter big cracks were found in the front foundations. Hammarberg admitted that the front foundations settled at least two inches. Crabtree, acting chief of the appraisal division and former chief of the architectural section of the Veterans Administration, testified that he first inspected the house in April or May, 1948, and found the living room floor in excess of two inches off level, found the ceilings off level, and small cracks in the plaster. He inspected the premises three times, the last time a week before this trial, and discovered that the cracks had increased in number and size after each inspection. When he first inspected the foundations there was a crack in the west wall. On his second inspection this crack had increased in size and others were present. By the time of his third inspection cracks had appeared in the center and end foundations, and the fireplace had settled. He testified that it would be necessary to rebuild virtually the entire house to put it in the condition contemplated by the plans and specifications. He approved a plan of repair submitted by an engineer by the name of Engle, and testified that the repairs proposed by Engle would cost between $12,500 and $13,000, plus certain supervisory costs. There were many other estimates made by various experts. Their estimates vary greatly running from $1,846.50 to $17,354. No point is made on this appeal challenging the amount of damages fixed by the jury. Alexander testified that he could not make the repairs...