Caron v. Andrew

• Decision Date: 03 June 1955
• Citation: 133 Cal.App.2d 402,284 P.2d 544
• Court: California Court of Appeals Court of Appeals
• Parties: Fred J. CARON and John B. Oliver, co-partners doing business as Caron & Oliver, Equipment Center, Plaintiffs, v. Parley G. ANDREW, John Doe Andrew, individually and as co-partners doing business as Andrew Brothers, Farm Service Company, a corporation, Earm Service Company, a co-partnership composed of Parley G. Andrew and Best Fertilizer Company, Best Fertilizer Company, a corporation, Best Fertilizer Company, a copartnership composed of L. A. Barry, Parley G. Andrew and Farm Service Company, Enrico Picchi, Julia Picchi, Frediano E. Picchi, Josephine M. Picchi, H. H. Grimes, Ruth Grimes, Norman Dean and Betty Dean, Defendants. H. H. Grimes and Ruth Grimes, Cross-complainants, Cross-appellants and Respondents. Farm Service Company, a corporation, Cross-defendant, Appellant and Respondent. Enrico Picchl, Julia Picchl, Frediano E. Picchi and Josephine M. Picchi, Cross-complainants and Respondents. Farm Service Company, a corporation, Cross-defendant and Appellant. Civ. 8595.

Page 544

284 P.2d 544

133 Cal.App.2d 402

Fred J. CARON and John B. Oliver, co-partners doing business as Caron & Oliver, Equipment Center, Plaintiffs, v. Parley G. ANDREW, John Doe Andrew, individually and as co-partners doing business as Andrew Brothers, Farm Service Company, a corporation, Earm Service Company, a co-partnership composed of Parley G. Andrew and Best Fertilizer Company, Best Fertilizer Company, a corporation, Best Fertilizer Company, a copartnership composed of L. A. Barry, Parley G. Andrew and Farm Service Company, Enrico Picchi, Julia Picchi, Frediano E. Picchi, Josephine M. Picchi, H. H. Grimes, Ruth Grimes, Norman Dean and Betty Dean, Defendants H. H. Grimes and Ruth Grimes, Cross-complainants, Cross-appellants and Respondents Farm Service Company, a corporation, Cross-defendant, Appellant and Respondent Enrico Picchl, Julia Picchl, Frediano E. Picchi and Josephine M. Picchi, Cross-complainants and Respondents Farm Service Company, a corporation, Cross-defendant and Appellant.

Civ. 8595.

District Court of Appeal, Third District, California.

June 3, 1955.

Rehearing Denied June 22, 1955.

Hearing Denied July 27, 1955.

Aiken, Kramer & Aiken of Oakland, for appellant and cross-respondent Farm Service Company.

J. Kingsley Chadeayne of Tracy, for respondent and cross-appellant H. H. Grimes.

Rutherford, Jacobs, Cavalero & Dietrich, of Stockton, for respondents Picchi.

VAN DYKE, Presiding Justice.

In July, 1950, H. H. Grimes and Fred E. Picchi were engaged in purchasing a tract of land known as the 'Hunt Ranch' in San Joaquin County. It comprised 759 acres of land located on the east side of the San Joaquin River and between that river and Walthall Slough. They intended to own the land severally. While the purchase was being consummated Grimes and Picchi entered into a contract with Andrew Brothers, a copartnership, whereunder the parties contracted for the leveling of the entire ranch by Andrew Brothers; the work to be finished by December 1, 1950. Shortly after this contract was signed, the property was acquired, the title being taken in two groups of people, one group headed by H. H. Grimes, the other by Fred Picchi. Hereafter we shall refer to the Grimes group as 'Grimes', to the Picchi group as 'Picchi' and to the Andrew Brothers as 'Andrews'. Farm Service Company, a corporation, hereafter called 'Farm Service', guaranteed the faithful performance of the work by Andrews, the penalty of the bond being in the amount of $26,000, onehalf the contract price for the leveling. Andrews entered upon the performance of the work and obtained some machinery from Fred Caron and John Oliver, hereafter called 'Caron', on a lease purchase agreement. Caron began an action against Andrews and their surety, Farm Service, and also against Grimes and Picchi. They sought compensation for the use of their machinery, asking also for the declaration and foreclosure of a materialman's lien upon the real property. Both Grimes and Picchi cross-complained against Andrews and Farm Service for damages alleged to have arisen out of the breach of the leveling contract. Judgment was rendered, granting Caron a sum in compensation for the use of their machinery and denying them a lien. Judgment was also given in favor of Grimes and Picchi against Farm Service. Motions for new trial as to all judgments were made by the parties against whom the judgments were rendered, and were denied as to the judgments in favor of Grimes and Picchi, but granted as to the judgment in favor of Caron. A further trial was held as to Caron and judgment was rendered in Caron's favor, which judgment is the subject of a separate appeal. It was stipulated during the proceedings that Andrews had been adjudicated bankrupt and so no judgment was rendered against them. Farm Service appeals from the judgments against it and Grimes also appeals, contending that a larger award should have been made. The Grimes appeal is on the judgment roll alone.

The court made findings as follows: That Andrews entered upon the lands and partially performed the work called for in the leveling contract; that on October 25, 1950, Andrews defaulted, abandoned the work, left the premises and never returned for the purpose of completing the work; that after the abandonment of the work by Andrews and on November 15, 1950, Farm Service, in performance of the terms of its surety agreement 'did enter upon the performance of the contract of July 14, 1950 [the leveling contract]' with the consent and permission of Grimes and Picchi and 'did then undertake the performance and completion of said contract of Andrew Brothers as guarantors'; that on February 24, 1951, Farm Service ceased work and thereupon was served with a written demand by Grimes and Picchi for the completion of the work of leveling; that Farm Service thereupon advised Grimes and Picchi that it would not complete the contract; that thereafter Farm Service quit the premises and never returned; that thereafter Grimes and Picchi entered into agreements with others to complete the land leveling; that the actual and reasonable cost of completion to Grimes was the sum of $29,736.38; that Grimes had paid for the work done by Andrews and Farm Service a total of $19,346, making the whole cost of leveling the Grimes land the sum of $49,082.38, as opposed to $29,162, his share of the contract price, leaving Grimes damaged in the sum of $19,920.38 by failure of Andrews and Farm Service to complete the contract. Similar findings with respect to Picchi fixed the damages of Picchi in the amount of $4,960. In addition to the foregoing damages, special damages were awarded both Grimes and Picchi. Grimes was awarded further damages in the sum of $6,060 for loss of use of land and $2,500 for attorney's fees, as provided for in the leveling contract in event of breach. Picchi was given special damages in the sum of $1,252.50 because of leveling work improperly done by Andrews which had to be corrected, and the further sum of $1,946 for loss of crops for failure to properly level. Picchi was also awarded attorney's fees in the sum of $1,500. The damages awarded to Grimes thus totaled $28,480.38 and those awarded to Picchi totaled $9,658.50. The court limited the awards to the penalty of the bond, prorating the bond penalty of $26,000 between Grimes and Picchi in proportion to their total awards, with the result that Grimes received a judgment for $19,416.10 and Picchi received judgment for $6,583.90.

There were heavy rains in the fall of 1950. On November 20th, following an unusually heavy storm, there were several breaks in the master levees surrounding the land and the property was partially flooded. On December 5th a second flooding occurred due to further breaks in the levees and this flood almost completely inundated the property. Later in December both Grimes and Picchi requested the United States Army Corps of Engineers for aid in the repair of the levees. The request was granted and the levees were repaired. Permission was given the Army Engineers to use dirt for the repair of the master levees taken from a cross levee within the Grimes-Picchi property lines and some earth was also taken from the surface of the fields. The consent of neither Andrews nor Farm Service was obtained for this use of earth for levee repair and this situation forms the main ground of attack on the judgment by appellant Farm Service. Farm Service had affirmatively pleaded in its answer to the cross complaint of Grimes and Picchi that the lands had been flooded by waters escaping from the streams; that the lands had been under water for more than three months and that by reason of the flooding the contour thereof had been materially changed from that existing at the time the leveling agreement was made; that such conditions were not contemplated by any of the parties to the contract and had been brought about by happenings beyond their control; that the performance of the land leveling agreement had thus been made impossible. Farm Service had further pleaded that after the flooding of the lands and without its knowledge or consent Grimes and Picchi had materially altered the subject matter of the contract by wilfully removing great portions of the surface of the land for the purpose of building levees and dikes to prevent further flooding; that the removal of such large quantities of dirt constituted a material alteration of the obligation of Andrews and that by reason thereof Farm Service had been released from its obligations as surety. As to these affirmative defenses the court found that although the lands had been flooded it was not true that by reason thereof Andrews and Farm Service were unable to complete the work of leveling and that it was not true that the flooding made such completion impossible; that the flooding had not caused material changes in the contours of the land and that the flooding did not result in any change or destruction of the subject matter of the leveling contract; that it was not true that the flooding could not have been or was not anticipated or contemplated by the parties to the contract and that the agreement had been made in anticipation and contemplation that such flooding might occur; that Grimes and Picchi had not altered materially the subject matter of the leveling contract by permitting the Army Engineers to move dirt from the land and from the cross levee and that it was untrue that the removal of such dirt constituted such material alteration. The court concluded that the...