Ely v. Bottini
| Decision Date | 29 March 1960 |
| Citation | 179 Cal.App.2d 287,3 Cal.Rptr. 756 |
| Court | California Court of Appeals Court of Appeals |
| Parties | I. J. ELY, Plaintiff, Respondent and Appellant, v. Mario BOTTINI, Defendant, Appellant and Respondent. Civ. 18486. |
Lawrence A. Cowen, San Rafael, for appellant, Leo V. Killion, San Rafael, of counsel.
Kilpatrick & Peterson, Dwight C. Ely, Vallejo, for respondent.
I. J. Ely, a general contractor, sued Mario Bottini on a written subcontract entered into between the parties on June 6, 1955, whereby the latter had agreed to do certain construction work for Ely. Plaintiff alleged that Bottini had failed to provide timely performance, and that as a result of this delay heavy rains had damaged the work. He further alleged that he had been compelled to do certain portions of Bottini's work. The court overruled a demurrer and defendant answered the complaint, alleging that plaintiff himself had breached the contract by failing to make progress payments and that no damages had resulted to plaintiff. During the trial of this cause without jury, two supplemental complaints were allowed to be filed. The court filed findings of fact and conclusions of law, including a finding that although Bottini had earned $27,953, he was chargeable with damages in the amount of $18,934.70. Consequently, the court ordered plaintiff to pay defendant $7,318.30 plus interest. Both parties now appeal from the decree granting the above-mentioned relief.
On June 12, 1955, I. J. Ely contracted to perform certain work at Loch Lomond Subdivision, Unit No. 2, in Marin County, for Robert McCarthy Company, Inc. This contract provided that the work must be completed within 60 working days, or by September 12, 1955. It contained a liquidated damages clause requiring Ely to pay McCarthy $50 per day for each calendar day of delay beyond September 12.
This contract provided for the installation of sewers, curbs, gutters, and sidewalks, for which work Ely had previously let a subcontract to Mario Bottini on June 6, 1955. By the terms of the June 6 contract, Bottini was to complete his work within 40 working days after the signing of the Ely-McCarthy contract. Also, by the terms of the June 6 contract, Ely was to pay Bottini a bonus of $300 in exchange for the latter's bonding of his work directly to the McCarthy Company. Bottini, in fact, did execute such a bond dated June 22, 1955.
The June 6 contract and the bond both referred to 9,240 square feet of sidewalk which Bottini was to install. Ely testified that he mentioned to Bottini the possibility that this portion of the work might be eliminated. The McCarthy Company later did eliminate it, Ely testifying that this cancellation was by authority of a provision of the June 12 contract permitting McCarthy to do so. Bottini testified that it would cost about 15 cents per lineal foot less to install curbs and gutters when installing sidewalks at the same time and that he had contemplated installing all three at the time he bid for the June 6 contract. He also testified that he was told not to install sidewalks only after he had begun to do so, sometime between August 18-20.
Bottini began work on July 21, 1955, but on about August 14, he had completed only about 20-25% thereof. By September 12, 1955, he had completed only about 35% of his job. Ely could not proceed with street paving under the June 12 contract until Bottini had finished.
McCarthy testified that he had observed that Bottini was working too slowly, and that he had written several letters to Ely and had spoken to Bottini many times concerning this. Ely testified that he had made many telephone calls to Bottini, starting as early as the latter part of July, complaining that the work was behind schedule. Ely's vice president and supervisor of the Bottini contract, Ralph C. Noah, also had numerous conversations with Bottini on the same subject. Noah testified, however, that despite this Bottini frequently used no more than two or three men at a time on the job, and these worked only sporadically during August. McCarthy corroborated this, stating that he didn't remember ever seeing more than two or three men on the job at any time. Bottini denied that he had had an insufficient crew.
Ely testified that he had first warned Bottini that the latter's delay would make it necessary to hire other subcontractors at Bottini's expense sometime between August 25 and September 5. On October 7, 1955, Ely sent Bottini a registered letter reminding him of the June 6 contract obligations, warning him of the damages which further delay would cost him, and stating that the expense of another contractor, already hired, would be charged against him.
Ely actually employed several subcontractors to complete various portions of the June 6 contract. Some of Bottini's work had not met contract specifications. The city required a compaction of 90% relative density around the sewer line. Tests showed that Bottini had not complied with this requirement. Ely paid the J. D. O'Connor Company and a concrete supplier a total of $4,748.32 for work done during October and November of 1955. He informed Bottini of the hiring of the O'Connor Company at the time the latter began work, Bottini having already advised him to find someone else to do the job if he could. Ely also hired Ghilotti Brothers, Inc., to install catch basins, again informing Bottini of such and receiving his concurrence at the time Ely first contacted Ghilotti. The latter began that work on November 12, 1955.
Ely did not recall having informed Bottini that this employment of other subcontractors would be on an overtime basis, but he testified that such was necessary in order to mitigate damages. Noah testified that Bottini must have known of this weekend work because he could see its results when he returned to the job on Monday mornings. Bottini denied having known that he was being charged overtime rates for O'Connor's work until he received the bills for it in January or February.
Heavy rains began falling on November 13, 1955, and continued through December 24 of that year. The resulting floods washed mud and gravel down from surrounding higher ground, causing extensive damage to the entire job, which was still uncompleted. On December 24, 1955, Ely again wrote to Bottini, insisting that he take immediate steps to alleviate the damages being caused by the rain, and to complete his contractual obligations. Ely also again stated that Bottini would be charged for all repairs necessitated and damages caused by his breach of contract. Ely testified that although Bottini subsequently sent men to clean out sewer manholes, he failed to clean the clogged drainpipes as requested in the above-mentioned letter. On December 27, 1955, and on March 12, 1956, Ely sent additional letters giving similar notice to Bottini.
The Ely-McCarthy contract called for 90% progress payments. McCarthy made two of these to Ely prior to November, but held up subsequent payments amounting to about $15,500 because the work was progressing too slowly.
Bottini testified that before he signed the June 6 contract, either Ely or Noah had promised him monthly progress payments. He submitted his first invoice to Ely on September 1, 1955, for $8,925.50. Ely did not make payments to Bottini as the latter's work progressed except for one payment of $1,200, but did give credit to Bottini on other debts owing by Bottini to Ely.
Noah testified that some of the delay was caused by the absence of survey stakes, which were the responsibility of McCarthy's engineer, but that this delay was not substantial, amounting to a few hours only. Bottini testified that when he first went out to begin work the subdivision was not ready, that he was not informed by Ely that he could begin until mid-July, and that because the stakes were not yet in place, he was delayed several days more. He also testified that he was delayed by the fact that he had to correct the grade furnished him in several places before he could install the curbs and gutters.
Ely entered an agreement with McCarthy whereby the former deducted $3,442.97 from his bill to cover the costs to the latter of delay and repairs. This was by way of an alternative to invoking the liquidated damages clause of the June 12 contract, which would have required a damages settlement of approximately $15,000.
Bottini's Appeal.
We shall take up appellant Bottini's points urged for reversal in the order in which they are stated in his brief.
There is no express finding that Bottini's work was poorly done and the theory of the case supported by ample evidence, although not without substantial contradiction, is that Ely was compelled to let portions of Bottini's work to other contractors because of delay and the delay in the completion of Bottini's contract made it impossible for respondent Ely to complete the paving of the streets before the rains set in and that the damage to the property by flooding from rainfall resulted because of the fact that the streets were not paved. There is direct testimony by Ely that if the streets had been paved and the sewer and gutter work completed the damage from rainfall would not have occurred.
Hereunder Bottini argues that the early rainfall was of unusual intensity and not of a character which the parties could have foreseen when the contract was entered into. Bottini cites the leading case of Hadley v. Boxendale, 9 Ex. 341, 156 Engl.Rep.R. 145 and Civil Code section 3300 for the settled rule that for the breach of a contract the party committing the breach is only liable for the detriment 'which, in the ordinary course of things, would be likely to result therefrom.'
Bottini had been in the contracting...
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