Heidt v. Miller Heating & Air Conditioning Co.

• Decision Date: 26 March 1969
• Citation: 271 Cal.App.2d 135,74 Cal.Rptr. 695
• Court: California Court of Appeals Court of Appeals
• Parties: Horace HEIDT, Plaintiff and Appellant, v. MILLER HEATING AND AIR CONDITIONING CO., Inc., et al., Defendants and Respondents. Civ. 32469.

Page 695

74 Cal.Rptr. 695

271 Cal.App.2d 135

Horace HEIDT, Plaintiff and Appellant, v. MILLER HEATING AND AIR CONDITIONING CO., Inc., et al., Defendants and Respondents.

Civ. 32469.

Court of Appeal, Second District, Division 5, California.

March 26, 1969.

As Modified April 23, 1969.

Thompson & Oppen, by James J. Oppen, Los Angeles, for plaintiff and appellant.

No appearance for defendant and respondent Miller Heating and Air Conditioning Co., Inc.

STEPHENS, Associate Justice.

This is an appeal from that part of a severable judgment denying plaintiff attorney's fees in his successful action against defendant for damages arising out of a breach of contract.

As part of his complaint and in his prayer, plaintiff sought recovery of such fees on the basis of a provision in the contract sued upon that '(s)hould legal action be necessary to enforce or interpret any phase of this contract the losing party therein shall pay to the prevailing party reasonable attorney's fees.' The trial court denied recovery, presumably on the basis that an action for damages was not an action to enforce or interpret the contract. Since no extrinsic evidence directed toward interpretation and raising an issue of credibility was offered, we must make an independent determination of the meaning of the contract. Parsons v. Bristol Dev. Co., 62 Cal.2d 861, 866, 44 Cal.Rptr. 767, 402 P.2d 839.)

In the present case, plaintiff sought to recover damages pursuant to the terms of the contract, rather than independently of its terms. If the words 'to enforce or interpret' the contract are broad enough to encompass the present action for damages arising from breach of contractual duty--and certainly the contract had to be 'interpreted' to ascertain liability--then it seems clear that attorney's fees were envisioned when such interpretation became necessary. The basic lawsuit here is the plaintiff's means of enforcing its rights pursuant to the contract. To enforce may mean to give effect to or to cause to have force. (See 30 C.J.S. 696 and Meridian, Ltd. v. Sippy, 54 Cal.App.2d 214, 220, 128 P.2d 884.) A valid contract is one which can be enforced so as to give to the proponent thereof the property, or the money, or the profit, or other advantage for which he bargained.

There is no question but that if a contract provides for the allowance of attorney's fees and suit is instituted to enforce the provisions of the contract, such an allowance may properly be made. ¹ (Walsh v. Walsh, 42 Cal.App.2d 293, 295, 108 P.2d 768.) (See also: Code Civ.Proc. § 1021; Genis v. Krasne, 47 Cal.2d 241, 246, 302 P.2d 289; Citizens Suburban Co. v. Rosemont Dev. Co., 244 Cal.App.2d 666, 683, 53 Cal.Rptr. 551; Arthur B. Siri, Inc. v. Bridges, 189 Cal.App.2d 599, 603, 11 Cal.Rptr. 322) Thus, in Moss Construction Co. v. Wullfsohn, 116 Cal.App.2d 203, 204, 253 P.2d 483, a suit for monies due under a building contract, the court sustained an award of attorney's fees to plaintiff pursuant to a provision in the contract that 'should either party hereto bring suit in court To enforce the terms hereof, any judgment awarded shall include court costs and reasonable attorney's fees to the successful party.' (Emphasis added.) (See also Ansco Const. Co. v. Ocean View Estates, 169 Cal.App.2d 235, 337 P.2d 146.) In Downer Corp. v. Union Paving Co., 172 Cal.App.2d 126, 128, 342 P.2d 64, 66, the court sustained an award of attorney's fees in an action confirming an arbitration award, where the agreement provided as follows: 'In the event either party finds it necessary to bring an action at law To enforce its right hereunder, it is agreed that the Court shall award the successful party reasonable counsel fees.' (Emphasis added.) Awards of attorney's fees have been sustained in suits on promissory notes. (See Dankert v. Lamb Finance Co., 146 Cal.App.2d 499, 503, 304 P.2d 199, 201, where the note provided for reasonable attorney's fees 'in the event of commencement of suit to enforce this note'; see also Marsh Wall Products, Inc. v. Henry Marcus Building Specialties, 162 Cal.App.2d 371, 380, 328 P.2d 259.) Thus, in Prescot v. Grady, 91 Cal. 518, 522, 27 P. 755, where a promissory note provided for payment of a reasonable attorney's fee if the note was collected by suit, it was held that the amount properly to be allowed for such fee was 'a special damage, expressly authorized by the contract to be recovered In addition to general damages.' (Emphasis added.) Similarly, attorney's fees have been allowed in suits for damages brought pursuant to lease agreements. (See Challenge-Cook Bros., Inc. v. Lantz, 256 Cal.App.2d 536, 64 Cal.Rptr. 239, an action to recover accrued rentals and damages for withholding possession; Erbe Corp. v. W & B Realty Co., 255 Cal.App.2d 773, 63 Cal.Rptr. 462, an action for unlawful detainer and treble damages; Wiese v. Steinauer 201 Cal.App.2d 651, 20 Cal.Rptr. 295, an action to recover rent.)

In Oakland Cal. Towel Co. v. Roland, 93 Cal.App.2d 713, 718, 209 P.2d 854, 858, although the particular contractual provision is not quoted, the court permitted plaintiff to recover attorney's fees in an action for damages for breach of contract, stating: '(I)n the present case ...