MacIsaac & Menke Co. v. Freeman

• Citation: 194 Cal.App.2d 327,15 Cal.Rptr. 48
• Court: California Court of Appeals Court of Appeals
• Decision Date: 26 July 1961
• Parties: MacISAAC AND MENKE CO., a corporation, Plaintiff and Respondent, v. C. L. FREEMAN, doing business as W. C. Shinn Plumbing & Heating Company, Defendant and Appellant. Civ. 24876.

Page 48

15 Cal.Rptr. 48

194 Cal.App.2d 327

MacISAAC AND MENKE CO., a corporation, Plaintiff and Respondent, v. C. L. FREEMAN, doing business as W. C. Shinn Plumbing & Heating Company, Defendant and Appellant.

Civ. 24876.

District Court of Appeal, Second District, Division 3, California.

July 26, 1961.

Rehearing Denied Aug. 17, 1961.

Hearing Denied Sept. 20, 1961.

Holbrook, Tarr & O'Neill and Francis H. O'Neill, Los Angeles, for appellant.

Flint & MacKay, Arch R. Tuthill, Roscoe C. Andrews, and Robert E. Willard, Los Angeles, for respondent.

FORD, Justice.

The defendant appeals from a judgment. in the amount of $6,700 in favor of the plaintiff in an action to recover damages caused by the defendant's refusal to perform certain plumbing and steam fitting work under a bid which he had submitted to the plaintiff.

In the early part of February, 1958, the plaintiff, a licensed general contractor, was preparing a bid with respect to the construction of a structure designated as the Botany Building on the campus of the University of California at Los Angeles. Bids had to be submitted before 2 p. m. on February 7, 1958. J. D. McDonald, a construction estimator for the plaintiff, testified that the procedure ordinarily followed in such work was that selected subcontractors were asked to submit bids after an examination of the plans and specifications. Sheets M-1 to M-21, inclusive, of the plans for the Botany Building showed the complete mechanical requirements; there was no separation of plans for plumbing, heating, ventilating, air conditioning, domestic refrigeration and steam fitting. In the specifications, section CC related to domestic refrigeration, section DD was entitled 'Plumbing and Steamfitting,' while section EE bore the heading of 'Heating, Ventilating and Cooling.' About a week or ten days before the closing date of the bids, Mr. Anderson, an employee of the defendant, obtained from the plaintiff the mechanical plans (sheets M-1 to M-21, inclusive) and the specifications for section DD. On February, 6 ,1958, between 1:30 and 1:45 o'clock in the afternoon, Mr. McDonald received a telephone call from Mr. Hatfield, an employee of the defendant. Part of Mr. McDonald's testimony as to that conversation was as follows: 'A. At that time he gave me--or first thing, he said was, 'I have got a bid on the Botany Building.' At that time I was in--was closing a job which was bidding within 20 minutes of the time he gave it to me, which was another job bidding on that Thursday. So, I told him I was in a hurry, make it quick. So, he told me he had a bid for the plumbing only; no heating, for the Botany Building, and gave me the figure of $144,300. * * * I believe his exact words, to the best of my knowledge, were 'Plumbing only. No heating.' * * * He gave me the figure. I believe I asked him something like, 'Is that everything?' [and] 'No questions?' And then I hung up. The conversation didn't last a minute. It was less than that since I was in a hurry and he realized what a bid closing is like. He kept it to a minimum and so did I. We didn't discuss the job.'

The plaintiff was the successful bidder and entered into a contract with the Board of Regents of the Iniversity of California. In submitting its bid, it used the defendant's bid as being the lowest for the work described in section DD of the specifications. After the bid of the plaintiff had been accepted, Mr. McDonald talked to Mr. Hatfield and was informed by the latter that when he had said 'no heating' he meant 'no steam fitting.' Mr. McDonald said to him: 'Well, you said no heating. That meant no heating section. There is no question that steam fitting is in the Plumbing Section.' On cross-examination, Mr. McDonald said that, while it was not common, sometimes a bid relates only to a part of a section of specifications. At a later date, Hatfield said that the steam fitting portion of the work would cost an additional amount of $79,500. Thereafter, the plaintiff had the plumbing steam fitting done for $151,000, which was $6,700 in excess of the defendant's bid of $144,300. ¹

C. L. Freeman, the defendant, testified that he was a plumbing and heating contractor. He said he had licenses from the State of California as follows: 'What is commonly known as a C-36, which is plumbing license; a C-4, which is a steam fitting license.' He further testified that '[p]lumbing takes in the drainage system of a building, water supply system and gas piping' whereas 'heating in some instances covers steam fitting'; the State Department of Contractors puts piping for a steam-heating system under the steam fiting classification. In the construction industry, it is a common practice 'to bid part of a specification or of a section of a contract.' The common meaning of the phrase 'plumbing only' is that it covers the drainage systems, the domestic water systems, and the gas piping; 'heating' means the heating of areas within a building. Steam piping or steam fitting is normally classified by contractors in the Los Angeles area as being in the category of heating. Common practice is 'to emphasize what you are bidding.' When asked if there was a custom, when only a part of a classifcation is bid, to mention specifically what is not being bid, the defendant answered: 'Yes, I would say so.' The witness was away from Los Angeles when the bid in question was made.

Frank Hess, a plumbing and heating contractor who testified as an expert witness on behalf of the defendant, said that steam fitting normally encompassed 'the assembly of piping, conducting steam to various units and the fittings * * * attached to the piping.' He also testified to the practice within the construction industry as to the submission of bids by subcontractors to the general contractor. He stated that heating would include steam fitting. If a bid contains an exclusion, it is the common practice for the general contractor to ask what is meant thereby if any ambiguity has not been explained.

Roger E. Harrington, who was engaged in the plumbing, heating and air conditioning business, testified as an expert witness for the defendant. He stated that steam fitting or steam piping was normally classified as being in the category of heating, not of plumbing.

In rebuttal, the plaintiff called Richard J. Coe, who was in the plumbing and heating business, as an expert witness. Part of his testimony was as follows: 'A. * * * You could say 'Plumbing only, no heating,' for the entire job, yes. Q. Well, you mean including--that would be excluding Section EE? A. Yes.' He further said that in bidding on section DD, the customary method would be to use the words 'steam fitting,' rather than the word 'heating,' in stating an exclusion. On cross-examination, he said that 'steam fitting is probably more often called heating' than it is classified as being in the category of plumbing. If he were bidding on section DD and wanted to bid the plumbing only, he would say: 'Plumbing only. No steam piping or no piping,' because in his shop steam piping is classified as a form of piping. The witness further testified as follows: 'Q. * * * Now, however, if you were receiving a bid from somebody on just DD; that is all that they had been handed and all they were bidding on in which they said, 'Plumbing only, no heating,' would you construe that as meaning that the steam piping was excluded? * * * The Witness: Yes, I would say that I would have to.'

Cecil P. Smith, who was in the plumbing business, testified in rebuttal on behalf of the plaintiff. In response to questions as to the 'customary procedure' with respect to bidding as to a section such as section DD, he stated: 'Well, customary procedure, the wording 'Plumbing only, no heating' wouldn't be customary either for this section or any other section without further explanation. * * * If you had bid Section DD and said specifically that you were bidding Section DD, 'Plumbing only, no heating,' it could refer to this section only. * * * Well, you keep saying two things here: one time you say 'Plumbing only, no heating,' and then the next thing they refer to Section DD, 'Plumbing only, no heating.' It's entirely two different things. * * * The statement, 'Plumbing only, no heating,' is a broad statement; it covers the whole book, perhaps, or we couldn't know what it covers.' Later in the examination of the witness, the witness answered questions of the trial judge, as follows: 'The Court: Then, the custom and usage in the industry under those circumstances if a bid is made bidding plumbing but no heating, what would that mean, if it means anything, under the custom and usage in the industry? The Witness: Just as a statement of that, not referring to this would mean just what it says: Plumbing only but no heating of any type. * * * You have given me three words and said, 'Is there a custom and usage involved in those three words?' I can't particularly pin them down to a custom and usage. Not without some further statement.'

Arthur F. Menke, president of the plaintiff corporation, testified as a rebuttal witness. Part...