Lee C. Hess Co. v. City of Susanville

• Decision Date: 23 December 1959
• Citation: 176 Cal.App.2d 594,1 Cal.Rptr. 586
• Court: California Court of Appeals Court of Appeals
• Parties: LEE C. HESS COMPANY, Plaintiff and Appellant, v. CITY OF SUSANVILLE, a Municipal Corporation, Defendant and Respondent. Civ. 9759.

Page 586

1 Cal.Rptr. 586

176 Cal.App.2d 594

LEE C. HESS COMPANY, Plaintiff and Appellant, v. CITY OF SUSANVILLE, a Municipal Corporation, Defendant and Respondent.

Civ. 9759.

District Court of Appeal, Third District, California.

Dec. 23, 1959.

Rehearing Denied Jan. 20, 1960.

Hearing Denied Feb. 17, 1960.

Robert W. Anderson, Oroville, for appellant.

Donald P. Cady, City Atty., Susanville, and Robert T. Anderson, of Sturgis, Den-Dulk, Douglass & Anderson, Oakland, for respondent.

WARNE, Justice pro tem.

This is an appeal from a judgment in favor of the respondent in an action for breach of contract.

In 1953 the respondent City of Susanville adopted a resolution of intention to do certain public work within its boundary, proceeding under the Improvement Act of 1911, now contained in division 7, pert 3, of the Streets and Highways Code. All prescribed action was duly taken, up to and including a call for bids, and Lee C. Hess Company, a corporation, submitted the lowest bid. The City Council of Susanville then passed a resolution declaring Hess Company to be the lowest responsible bidder and awarded to it the contract for doing the work. Four days later (April 24, 1953), acting upon mistaken advice by the assistant director of the Department of Professional and Vocational Standards that the Hess Company was not a properly licensed contractor, the city council held a special meeting attended by all its members, without any notice to Hess Company, and there passed a resolution declaring the Hess Company had not been qualified to bid the work and purporting to award the contract to one Katsaros, a bidder whose bid had been next lowest to that of Hess Company.

On May 14, 1953, pursuant to the provisions of section 5265 of the Streets and Highways Code, the city brought an action to have the award of the contract to Katsaros declared valid. Hess Company in said action filed an answer and cross complaint praying that the award of the contract to Katsaros be held invalid and further praying that said contract be awarded to it. In that action Hess Company prevailed. City of Susanville v. Lee C. Hess Co., 45 Cal.2d 684, 290 P.2d 520. The parties thereafter, on April 29, 1956, entered into a formal contract. The work was commenced under the contract during the month of May, 1956, and was completed on June 26, 1956. It was officially approved and accepted by the respondent city in December, 1956.

In 1957 appellant Hess Company brought the present action for damages, seeking to recover the amount of attorney's fees and costs incurred in the validation proceedings and the rise in cost of construction, materials and labor in 1956 when the work was performed over what the costs would have been in 1953.

The trial court found 'That Defendant City of Susanville, in instituting action No. 7725 * * *, [that is the action brought to have the award of the contract to Katsaros declared valid] acted pursuant to the express statutory authority of Sec. 5265 of the Streets and Highways Code of the State of California, and that the subsequent delay between the date of acceptance by Defendant of Plaintiff's bid to do the work herein involved, and the date of formal signing of the written contract between said parties, on or about April 29, 1956, was the result of said action and the litigation which followed in the higher courts.' Upon these findings the court concluded 'as a matter of law the Defendant City of Susanville has committed no unlawful act or omission which would result in any liability in this matter, and no cause of action in consequence thereof has arisen in favor of Plaintiff.' And the court further found that 'When plaintiff chose to execute and perform under the contract on April 29, 1956, he became bound by all of its terms.' Judgment was entered accordingly in favor of the respondent herein and this appeal followed.

Appellant Hess Company contends that the trial court erred in holding that the respondent is not liable in damages for the delay caused by its rescission of the award of the contract and the expense of the consequential litigation. It relies upon such cases as Milovich v. City of Los Angeles, 42 Cal.App.2d 364, 108 P.2d 960, a case in which the city was held liable where the work was delayed due to the city's delay in furnishing certain materials necessary to said construction; McGuire & Hester v. City, etc., of San Francisco, 113 Cal.App.2d 186, 247 P.2d 934, where the city was held liable because of its failure to obtain rights of way as agreed until sometime after the commencement of the project, thereby causing the contractor to complete the job at a later time under adverse weather conditions; Maurice L. Bein, Inc. v. Housing Authority, 157 Cal. App.2d 670, 688-689, 321 P.2d 753, where damages were allowed for delay in construction caused by the housing authority for failure to obtain approval within a reasonable time of the plans and specifications to the city of Los Angeles and refusal of the authority to permit commencement of a certain portion of the construction.

On the other hand, respondent argues that the delay caused by the time required for the validation proceedings is in no way comparable to such a delay as the failure to furnish materials or rights of way. Appellant answers that since respondent illegally rescinded the award of the contract to it respondent's purported award of the contract to Katsaros was void, hence respondent had no right to bring the action to have the latter void award declared valid. Be this as it may, the facts are that the validation proceedings did not per se cause the alleged damages. It was the attempted rescission of the award of the contract to appellant that constituted the breach for which appellant sought damages. The validation proceedings were merely incidental to the breach. The action was not barred by the statute of limitations. The running of the statute of limitations was suspended during the pendency of the validation proceedings, hence appellant had no cause of action until it was finally judicially determined that respondent had wrongfully breached its contract. County of Santa Clara v. Hayes Co., 43 Cal.2d 615, 618, 275 P.2d 456.

Respondent city was not exempt from liability in damages because of section 5285 of the...