Byson v. City of Los Angeles

CourtCalifornia Court of Appeals
Writing for the CourtSHINN
PartiesC. G. BYSON, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a municipal corporation; Service Construction Co., a California corporation, et al., Defendants. City of Los Angeles, a municipal corporation, Respondent. Civ. 21906.
Decision Date27 March 1957

Page 765

308 P.2d 765
149 Cal.App.2d 469
C. G. BYSON, Plaintiff and Appellant,
v.
CITY OF LOS ANGELES, a municipal corporation; Service Construction Co., a California corporation, et al., Defendants.
City of Los Angeles, a municipal corporation, Respondent.
Civ. 21906.
District Court of Appeal, Second District, Division 3, California.
March 27, 1957.
Rehearing Denied April 19, 1957.
Hearing Denied May 22, 1957.

Page 766

[149 Cal.App.2d 471] Grant & Popovich, Los Angeles, for appellant.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Alfred E. Rogers and John F. Feldmeier, Deputy City Attys., Los Angeles, for respondent.

SHINN, Presiding Justice.

The present action is against the City of Los Angeles to recover $13,042.51 damages allegedly sustained due to the city's breach of a construction contract awarded plaintiff under authority of the City Charter and the Improvement Act of 1911, Streets and Highways Code, section 5000 et seq. The gravamen of the amended complaint is that the city wrongfully compelled plaintiff to perform certain repair work not contemplated by his contract; recovery is sought for $11,741.23, the cost of said repairs, and for $1,301.28 interest which plaintiff paid for the use of money he was obliged to borrow in order to complete said repairs. Trial was to the court. Before the introduction of any evidence, defendant made motions to exclude evidence, for summary judgment and for judgment on the pleadings; the court granted these motions and ordered a nonsuit. Plaintiff appeals.

The amended complaint contains two causes of action. The material allegations of the first cause of action are the following: Plaintiff, a licensed contractor, entered

Page 767

into a written agreement on March 31, 1952 with the Board of Public Works of the City of Los Angeles whereby he agreed to grade and construct concrete sidewalks, curbs, driveways and a roadway within the 116th Street and Anza Avenue Improvement District in accordance with detailed plans and specifications which were made a part of the agreement; plaintiff performed the work in the presence of city inspectors in accordance with the plans and specifications and all of said work was accepted by them. On August 19, 1953 he notified defendant that the work had been completed in accordance with the plans and specifications and requested a final inspection; defendant thereupon informed him that his work would not be accepted until he made certain repairs; plaintiff at first refused to comply with this demand on the ground that he had fully [149 Cal.App.2d 472] performed all the requirements of the contract, but since the contract provided that he could not obtain compensation until the job was accepted as complete, plaintiff made the repairs under protest informing defendant that he reserved the right to seek additional compensation for the repair work he was wrongfully required to do; its cost was $11,741.23, which plaintiff was obliged to borrow; interest on the loan totaled $1,308.28. On December 21, 1953, plaintiff filed a claim for the cost of the repair work with the city clerk pursuant to the provisions of sections 362, 363 and 376 of the City Charter; the clerk referred the claim to the city council, which rejected it on April 16, 1954. On May 21, 1954, plaintiff filed a claim for the interest he paid on the loan; this claim was rejected by the city council after the commencement of the present action. On February 19, 1954 all the construction work was accepted by the city.

The second cause of action is a common count for work, labor and materials furnished. The answer denies that plaintiff had completed the work according to the terms of the contract at the time he requested a final inspection; it also denies that the instruments filed with the city clerk constitute claims as required by the City Charter.

Defendant's motions to exclude evidence, for summary judgment and for judgment on the pleadings were predicated on the following grounds, viz.: The city is exonerated from liability for damages by the terms of the contract; the amended complaint does not allege any breach of contract by the city; plaintiff is a volunteer and is not entitled to recover for the additional work; the original complaint alleged that plaintiff's damages were occasioned by the fault of a subcontractor and he is bound by his former pleading; defendant is not liable in quantum meruit; and that if acceptance of plaintiff's work was wrongfully refused, his remedy was an appeal to the city council from such unjustified refusal. Streets and...

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13 practice notes
  • Bilardi Constr., Inc. v. Spencer
    • United States
    • California Court of Appeals
    • April 21, 1970
    ...Lee C. Hess Co. v. City of Susanville (1959) 176 Cal.App.2d 594, 598--599, 1 Cal.Rptr. 586; and Byson v. City of Los Angeles (1957) 149 Cal.App.2d 469, 473--474, 308 P.2d 765.) In the latter case the court related, 'The exemption from liability is not a bar to the maintenance of the present......
  • Najera v. Southern Pac. Co.
    • United States
    • California Court of Appeals
    • April 27, 1961
    ...amended complaint states the substance [191 Cal.App.2d 636] of a cause of action on any theory.' Byson v. City of Los Angeles, 1957, 149 Cal.App.2d 469, 472, 308 P.2d 765, 767; Seeger v. Odell, 1941, 18 Cal.2d 409, 412, 115 P.2d 977, 136 A.L.R. 1291; Rannard v. Lockheed Aircraft Corp., 1945......
  • M. De Matteo Const. Co. v. Maine Turnpike Authority, Civ. No. 5-46.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • June 29, 1960
    ...applying New York law); American Pipe & Constr. Co. v. Westchester County, 2 Cir., 1923, 292 F. 941, 955; Byson v. Los Angeles, 1957, 149 Cal.App.2d 469, 308 P.2d 765; Borough Constr. Co. v. New York, supra; Gearty v. New York, 1902, 171 N.Y. 61, 63 N.E. 804; Heating Maintenance 184 F. Supp......
  • Shea-Kaiser-Lockheed-Healy, SHEA-KAISER-LOCKHEED-HEALY
    • United States
    • California Court of Appeals
    • September 26, 1977
    ...damages from DWP. Accordingly they are not precluded by competitive bidding requirements. (Cf. Byson v. City of Los Angeles, 149 Cal.App.2d 469, 472--473, 308 P.2d 765; Lee C. Hess Co. v. City of Susanville, 176 Cal.App.2d 594, 598, 1 Cal.Rptr. 586; Bilardi Constr., Inc. v. Spencer, 6 Cal.A......
  • Request a trial to view additional results
13 cases
  • Bilardi Constr., Inc. v. Spencer
    • United States
    • California Court of Appeals
    • April 21, 1970
    ...Lee C. Hess Co. v. City of Susanville (1959) 176 Cal.App.2d 594, 598--599, 1 Cal.Rptr. 586; and Byson v. City of Los Angeles (1957) 149 Cal.App.2d 469, 473--474, 308 P.2d 765.) In the latter case the court related, 'The exemption from liability is not a bar to the maintenance of the present......
  • Najera v. Southern Pac. Co.
    • United States
    • California Court of Appeals
    • April 27, 1961
    ...amended complaint states the substance [191 Cal.App.2d 636] of a cause of action on any theory.' Byson v. City of Los Angeles, 1957, 149 Cal.App.2d 469, 472, 308 P.2d 765, 767; Seeger v. Odell, 1941, 18 Cal.2d 409, 412, 115 P.2d 977, 136 A.L.R. 1291; Rannard v. Lockheed Aircraft Corp., 1945......
  • M. De Matteo Const. Co. v. Maine Turnpike Authority, Civ. No. 5-46.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • June 29, 1960
    ...applying New York law); American Pipe & Constr. Co. v. Westchester County, 2 Cir., 1923, 292 F. 941, 955; Byson v. Los Angeles, 1957, 149 Cal.App.2d 469, 308 P.2d 765; Borough Constr. Co. v. New York, supra; Gearty v. New York, 1902, 171 N.Y. 61, 63 N.E. 804; Heating Maintenance 184 F. Supp......
  • Shea-Kaiser-Lockheed-Healy, SHEA-KAISER-LOCKHEED-HEALY
    • United States
    • California Court of Appeals
    • September 26, 1977
    ...damages from DWP. Accordingly they are not precluded by competitive bidding requirements. (Cf. Byson v. City of Los Angeles, 149 Cal.App.2d 469, 472--473, 308 P.2d 765; Lee C. Hess Co. v. City of Susanville, 176 Cal.App.2d 594, 598, 1 Cal.Rptr. 586; Bilardi Constr., Inc. v. Spencer, 6 Cal.A......
  • Request a trial to view additional results

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