Healy v. Brewster

• Decision Date: 25 April 1963
• Citation: 59 Cal.2d 455,380 P.2d 817,30 Cal.Rptr. 129
• Court: California Supreme Court
• Parties: , 380 P.2d 817 P. J. HEALY et al., Plaintiffs, Cross-Defendants and Appellants, v. Gerald E. BREWSTER, Defendant, Cross-Complainant and Respondent. L. A. 26464.

Page 129

30 Cal.Rptr. 129

59 Cal.2d 455, 380 P.2d 817

P. J. HEALY et al., Plaintiffs, Cross-Defendants and Appellants, v. Gerald E. BREWSTER, Defendant, Cross-Complainant and Respondent.

L. A. 26464.

Supreme Court of California, In Bank.

April 25, 1963.

James D. Garibaldi, Warren J. Lane and Abe Mutchnik, Los Angeles, for plaintiffs, cross-defendants and appellants.

Harold W. Kennedy, County Counsel, Lloyd S. Davis, Deputy County Counsel, Samuel Gorlick, City Atty., Burbank, Eldon V. Soper, Asst. City Atty., Robert E. Reed, Harry S. Fenton, Kingsley T. Hoegstedt Orrin F. Finch, and William S. Ashton, Jr., Sacramento, as amici curiae on behalf of plaintiffs, cross-defendants and appellants.

R. H. Reeve, Fresno, Enright, Elliott & Betz, Joseph T. Enright and Norman Elliott, Los Angeles, for defendant, cross-complainant and respondent.

Leon J. Garrie, Los Angeles, as amicus curiae on behalf of defendant, cross-complainant and respondent.

McCOMB, Justice.

Plaintiffs and cross-defendants (hereinafter referred to as 'appellants' ¹), after trial before a jury, appeal from a judgment in the sum of $61,108.05, plus $16,000 for attorneys' fees as an item of costs, entered in favor of defendant and cross-complainant (hereinafter referred to as 'respondent') in an action to recover on a construction subcontract.

Facts: August 26, 1958, appellants entered into a contract with the County of Los Angeles for the complete construction of an airstrip at the General William J. Fox Airfield in Lancaster, California.

Part of the required work consisted of clearing and grubbing the job site and building a dirt embankment of subsoil for the airstrip. In June 1958, prior to the execution of the prime contract, appellants called respondent's office to inquire if he would be interested in bidding for the subcontract for the clearing, grubbing, and ambankment work. The call was received by respondent's son, Donald Eugene Brewster.

After taking the call, Donald went to appellants' office in Palmdale, California, and talked with Mr. Doyle Hallam. Thereafter he and Mr. Hallam went to the site of the prospective airport project, which was then merely open country. Their whole visit lasted between an hour and an hour and a half, and Donald's entire examination of the site consisted in looking around at the general vicinity and at the surface area.

Donald also looked at the job plans and specifications furnished appellants by the county, particularly exhibits 5 and 6. Both exhibits were prepared exclusively by the Department of the County Engineer of Los Angeles and submitted to appellants (along with other prime contractors) at the time their bid was invited.

Exhibit 5 is entitled 'Location of Borings' and indicates the location of certain borings made in the soil at the job site, while exhibit 6 indicates that it is a 'Log of Borings.' The latter bears a 'Soil Analysis and Classification' chart of the borings taken by the county and designates the types of soil found in the borings by means of certain mechanical analysis tests. In order to make these tests, which consisted of sieving the particles through various fine screens, it was first necessary to pulverize the natural soil taken from the borings.

Appellants had nothing to do with the preparation of the job plans and specifications or with the soil tests and analyses shown thereon.

After Donald and Mr. Hallam visited the job site, they returned to appellants' offices. There Donald studied the plans and specifications for an addition hour and a half. The next day, after conferring with respondent by telephone, he informed Mr. Hallam that respondent would agree to do the clearing and grubbing for a set sum and the embankment work for 28 1/2cents per cubic yard.

The specifications which Donald examined provided: 'The bidder shall examine carefully the site of the work contemplated and the proposal, plans, specifications, and contract forms therefor. It will be assumed that the bidder has investigated and is satisfied as to the character, quality, and quantities of the work to be performed and materials to be furnished, and as to the requirements of the specifications, the special provisions and the contract.

'The plans for the work show conditions as they are supposed or believed by the County Engineer to exist, but it is not intended or to be inferred that the conditions as shown thereon constitute a representation or warranty, express or implied, by the County or its officers, that such conditions are actually existent nor shall the Contractor be relieved of the liability under contract, nor the County or any of its officers be liable for any loss sustained by the Contractor as a result of any variance between conditions as shown on the plans and the actual condition revealed during the progress of the work or otherwise.'

Some time in July, two months before respondent signed a subcontract with appellants and commenced work on the job, respondent received a telephone call from appellants stating they 'were having a ground-breaking ceremony and wanted to know if he would get some equipment into the job.' As a result, respondent moved two bulldozers, a motor grader, a Caterpillar motor grader, and a water pump out to the job site.

This equipment remained on the site for about two months before respondent signed the subcontract with appellants, but at no time was it ever used to check the nature of the soil below the surface. Donald never made any actual investigation of the condition of the soil at any time prior to the commencement of the actual embankment work, although he did observe some excavating and farming operations in the vicinity.

Respondent's own investigation of the job site consisted of looking around at the surface on two occasions, and no one in his employ ever checked the actual soil condition below the surface prior to the commencement of the embankment work.

Respondent executed the subcontract with appellants on September 8, 1958, and commenced work the latter part of that month.

The subcontract contained this provision: 'The General Contractor shall be at liberty any time before the completion or during the construction of the work or any part thereof, to order any extra work to be done, to order the omission of any work originally included in this Agreement, and to make any changes in the work which the General Contractor may deem expedient, whether such changes increase or diminish the work to be done; but no such changes shall be made except upon written order of the General Contractor, signed by an executive officer, stating the additional time allowed, if any, and the amount to be added to or deducted from the Contract Price. Unit prices, if any are named in this contract, shall be used in determining the value of any such changes, additions or deductions.'

On or about October 17, 1958, respondent commenced digging in the first borrow pit, to begin the embankment work. The procedure to be followed was to dig earth from an area designated as a 'borrow pit,' move it to the airstrip area, and there compact it in place as a subgrade for the airstrip or taxi-way.

Respondent had a foreman-superintendent, Robert W. Hanna, in charge of this work. Donald was on the job some days during the week. When he first commenced this work, Mr. Hanna dug a hole in the borrow area with a bulldozer, part of the equipment that had been brought to the job two months before for the ground-breaking ceremony. He then discovered that about six inches below the surface the soil was in a cemented state, which respondent has described as 'hardpan.' Nothing was said to appellants about this cemented material at that time.

On or about October 27, 1958, respondent's workers again encountered this cemented material. Thereafter there ensued a series of complaints about the cemented soil by respondent and Donald to various representatives of appellants. Respondent contended that his costs of operation were raised by the necessity of working with this cemented soil. Both respondent and Donald testified that they were frequently assured by these individuals that something would be done about the cemented material, 'that we would be compensated in some way for it.'

Respondent completed his work on the project on or about August 3, 1959.

He had sent appellant frequent invoices for progress payments while the job continued. All were for the contract price of 28 1/2 cents per cubic yard for th eembankment work. While on the job he never requested in writing payment of any sum above the contract price. He did not discuss with appellants what amounts would be paid him as extra compensation for working with the cemented materials or the basis on which extra compensation would be paid.

Two months after completing his work, respondent sent appellants a bill for $67,038.70, which represented his first written request for extra payment.

December 12, 1959, Mr. Oliver, on behalf of appellants, sent a letter to the County of Los Angeles, reading in part as follows: 'Attached are photostat copies of additional claims by Gerald Brewster for D8 tractor and disc used to attain the required compaction of material from the borrow pit and for watering costs for additional yardage moved.

'We respectfully submit the claims by Gerald E. Brewster for your consideration and approval of additional expenditure as outlined herein.'

December 17, 1959, Mr. Lambie, county engineer, replied, refusing to pay any additional sum for the embankment work.

On or about December 4, 1959, respondent filed a 'stop-notice' with the county, requiring it to withhold money still unpaid to appellants, and claiming that respondent was entitled to receive an additional sum of $93,023.74 from appellants.

Thereafter appellants filed a complaint for declaratory relief, and respondent filed a cross-complaint, in which he prayed for $387,483.49, less the sum already paid him.

The first cause of action of...