Csordas v. United Slate Title & Composition Roofers

• Decision Date: 15 January 1960
• Court: California Court of Appeals Court of Appeals
• Parties: , 45 L.R.R.M. (BNA) 2695, 39 Lab.Cas. P 66,197 Joe CSORDAS, Plaintiff and Appellant, v. UNITED SLATE TILE & COMPOSITION ROOFERS et al., Defendants and Respondents. Civ. 6219.

Page 133

2 Cal.Rptr. 133

177 Cal.App.2d 184, 45 L.R.R.M. (BNA) 2695,

39 Lab.Cas. P 66,197

Joe CSORDAS, Plaintiff and Appellant, v. UNITED SLATE TILE & COMPOSITION ROOFERS et al., Defendants and Respondents.

Civ. 6219.

District Court of Appeal, Fourth District, California.

Jan. 15, 1960.

Brumer & Hopson, Beverly Hills, for appellant.

No appearance for respondents.

MONROE, Justice pro tem.

The plaintiff brings action for damages for breach of contract. Plaintiff alleges in his complaint that he was doing business as a contractor under the fictitious name of All American Roofing Company, that he had a written contract with defendant labor union by which they agreed upon request to furnish to plaintiff as a contractor qualified and competent workmen and skilled mechanics of the classification needed by the contractor. Plaintiff alleges, in substance, that he was employed in constructing a building in Madison Park in the City of Santa Ana and that he was in need of a skilled tile setter to apply the roof, that he applied to the union and that they, pursuant to their agreement, furnished the defendant Cassidy, representing him to be skilled and competent to do the work contemplated. It is alleged that Cassidy was unskilled, that the work was done improperly, resulting in damage.

The defendants defaulted and their default was entered. Plaintiff applied to the court for judgment and in a hearing gave evidence sufficient to establish a prima facie case. The trial court granted judgment against Cassidy but refused to grant a judgment against the defendant union. The plaintiff appeals from this judgment. No brief has been filed on behalf of the defendants and respondents. We may therefore pursuant to rule 17(b) of Rules on Appeal, assume the correctness of the statements of fact in appellant's brief.

The cause of action set forth in plaintiff's complaint as to the defendant union was based upon breach of an express contract. The court in denying relief against the defendant union stated that he found no evidence of any negligence on the part of the union. The question involved was not one of negligence but breach of contract. The evidence offered by plaintiff made at least a prima facie case of breach of contract and of resulting damage.

Generally speaking, the party who makes default thereby confesses the material allegations of the complaint. Svetina v. Burelli, 87 Cal.App.2d 707, 197 P.2d 562; In re Wiechers' Estate, 199 Cal. 523, 250 P. 397. It is, of course, true that the court may not by default grant any relief in excess of that prayed for. In re Williams' Estate, 36 Cal.2d 289, 223 P.2d 248, 22 A.L.R.2d 716. Where, however, a cause of action is stated in the complaint and evidence is introduced sufficient to establish a prima facie case the...