Lee C. Hess Co. v. City of Susanville

CourtCalifornia Court of Appeals
Writing for the CourtWARNE; PEEK, Acting P. J., and SCHOTTKY
Citation176 Cal.App.2d 594,1 Cal.Rptr. 586
PartiesLEE C. HESS COMPANY, Plaintiff and Appellant, v. CITY OF SUSANVILLE, a Municipal Corporation, Defendant and Respondent. Civ. 9759.
Decision Date23 December 1959

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.

Page 588

[176 Cal.App.2d 595] 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.

[176 Cal.App.2d 596] 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 [176 Cal.App.2d 597] 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

Page 589

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...

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15 practice notes
  • Bilardi Constr., Inc. v. Spencer
    • United States
    • California Court of Appeals
    • April 21, 1970
    ...because of a breach of contract by the public entity acting in that capacity. (See § 5285; Lee C. Hess Co. v. City of Susanville (1959) 176 Cal.App.2d 594, 598--599, 1 Cal.Rptr. 586; and Byson v. City of Los Angeles (1957) 149 Cal.App.2d 469, 473--474, 308 P.2d 765.) In the latter case the ......
  • Glass v. Gulf Oil Corp.
    • United States
    • California Court of Appeals
    • October 28, 1970
    ...P.2d 645; Reid v. Valley Restaurants, Inc. (1957) 48 Cal.2d 606, 610, 311 P.2d 473; and Lee C. Hess Co. v. City of Susanville (1959) 176 Cal.App.2d 594, 599-600, 1 Cal.Rptr. 586.) A recognized exception is stated as follows: "A person who through the tort of another has been required to act......
  • Elkins v. Derby
    • United States
    • United States State Supreme Court (California)
    • August 22, 1974
    ...filed. (See Myers v. County of Orange (1970) 6 Cal.App.3d 626, 634--635, 86 Cal.Rptr. 198; Lee C. Hess Co. v. City of Susanville (1959) 176 Cal.App.2d 594, 598, 1 Cal.Rptr. 586. Cf. County of Santa Clara v. Hayes Co. (1954) 43 Cal.2d 615, 619, 275 P.2d 456; Record Machine & Tool Co. v. Page......
  • Lerner v. Los Angeles City Bd. of Ed.
    • United States
    • United States State Supreme Court (California)
    • April 4, 1963
    ...the limitation on an action against the surety. (pp. 970-971, 146 P.2d p. 28.) Finally, Lee C. Hess Co. v. City of Susanville (1959), 176 Cal.App.2d 594, 1 Cal.Rptr. 586, following Hayes, rules that the contractor's action for breach of contract against the city did not encounter the bar of......
  • Request a trial to view additional results
15 cases
  • Bilardi Constr., Inc. v. Spencer
    • United States
    • California Court of Appeals
    • April 21, 1970
    ...because of a breach of contract by the public entity acting in that capacity. (See § 5285; Lee C. Hess Co. v. City of Susanville (1959) 176 Cal.App.2d 594, 598--599, 1 Cal.Rptr. 586; and Byson v. City of Los Angeles (1957) 149 Cal.App.2d 469, 473--474, 308 P.2d 765.) In the latter case the ......
  • Glass v. Gulf Oil Corp.
    • United States
    • California Court of Appeals
    • October 28, 1970
    ...P.2d 645; Reid v. Valley Restaurants, Inc. (1957) 48 Cal.2d 606, 610, 311 P.2d 473; and Lee C. Hess Co. v. City of Susanville (1959) 176 Cal.App.2d 594, 599-600, 1 Cal.Rptr. 586.) A recognized exception is stated as follows: "A person who through the tort of another has been required to act......
  • Elkins v. Derby
    • United States
    • United States State Supreme Court (California)
    • August 22, 1974
    ...filed. (See Myers v. County of Orange (1970) 6 Cal.App.3d 626, 634--635, 86 Cal.Rptr. 198; Lee C. Hess Co. v. City of Susanville (1959) 176 Cal.App.2d 594, 598, 1 Cal.Rptr. 586. Cf. County of Santa Clara v. Hayes Co. (1954) 43 Cal.2d 615, 619, 275 P.2d 456; Record Machine & Tool Co. v. Page......
  • Lerner v. Los Angeles City Bd. of Ed.
    • United States
    • United States State Supreme Court (California)
    • April 4, 1963
    ...the limitation on an action against the surety. (pp. 970-971, 146 P.2d p. 28.) Finally, Lee C. Hess Co. v. City of Susanville (1959), 176 Cal.App.2d 594, 1 Cal.Rptr. 586, following Hayes, rules that the contractor's action for breach of contract against the city did not encounter the bar of......
  • Request a trial to view additional results

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