Jones v. Pollock
| Citation | 215 P.2d 733,34 Cal.2d 863 |
| Court | California Supreme Court |
| Decision Date | 14 March 1950 |
| Parties | JONES v. POLLOCK et al. L. A. 21225. |
Bruce Mason, Long Beach, for appellant.
Raymond J. Kirkpatrick, Moses E. Lewis, Jr., Long Beach, for respondent.
J. Elbert Jones, a building contractor, sued to foreclose a mechanic's lien and to recover a balance claimed due under a written contract to construct a residence for James and Jane Pollock. The court determined that recovery must be limited to 'the estimated cost' stated in the contract, plus extras, rather than the amount of the cost of construction. The appeal of Jones from the judgment presents as a question of law the nature and effect of the agreement made by the parties.
By the 'Contract For Building', Jones agreed '* * * for the consideration hereinafter named to furnish the necessary labor and materials * * * and to perform and complete according to this agreement * * * the buildings described, in a good workmanlike and substantial manner, and within the estimated cost of $13,100 and the contractor shall receive for his services % 15% of cost of construction which is included in estimated cost * * *.' In the event an authorized architect or engineer is required gy law or is demanded by the owner, '* * * an additional charge will be made for such engineer or architect'. The 'cost of the construction' as defined by the parties, .
Jones completed the building at a cost to him of $20,421.87. In his final bill to the Pollocks, he added the 15% contractor's fee to that amount, making a total of $13,005.15 after crediting $10,480 which had been paid on account.
The Pollocks insist that $13,100 is the maximum price chargeable under the agreement. They also claim that Jones did not complete certain work, necessitating the expenditure of $2,431.73 by them. Deducting this amount and the $10,480 paid on account from $13,100, leaves a balance of.$188.27, which they offered to pay in full settlement of all obligations under the contract.
There is no dispute as to the construction cost of the building and its value as constructed. According to the evidence the shortage of materials had required an unusually long time for construction. There was also a substantial increase in the cost of labor and materials. Several changes from the original plans were made upon the order of Mrs. Jones, which added materially to the building cost.
The trial court found that by the terms of the contract the maximum price payable by the Pollocks is $13,100 plus the cost of extra labor and materials amounting to $1,763.52, which sum includes the 15% commission. From the total of those sums was deducted the $10,480 paid on account with an additional allowance for $2,431.73 paid by the Pollocks to complete the building. The judgment for Jones of $1,951.79 is based upon these figures.
The contractor contends that as a matter of law the amount of $13,100 was only an estimate of cost; that the contract expressly excused him from responsibility for fluctuation of prices; and his agreement was to build upon a cost plus basis and not for a fixed fee amount. As another ground for a reversal of the judgment he argues that if the contract is ambiguous, it should be construed to require payment of the prevailing market rate rather than in a manner which will give one party to it an inequitable or unjust advantage over the other one.
The owners agree that the contract is one to build on a cost plus basis. But as they read the agreement, its terms support, as a matter of law, the finding that the maximum cost was to be $13,100. They argue that 'within $13,100' means a ceiling price, and the provisions for additional charges for 'extras' and for architects' or engineers' fees require the same interpretation. A further point upon which they rely is that any ambiguity in the contract must be construed against the contractor, who prepared the agreement.
'The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.' Civil Code, sec. 1638. As stated in Miranda v. Miranda, 81 Cal.App.2d 61, 69, 183 P.2d 61, 66: 'When a contract is in writing the instrument itself shall be...
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