Norcross v. Winters

• Decision Date: 02 November 1962
• Citation: 25 Cal.Rptr. 821,209 Cal.App.2d 207
• Parties: Tom E. NORCROSS, Plaintiff and Respondent, v. R. W. WINTERS et al., Defendant and Appellant. Civ. 26403.
• Court: California Court of Appeals Court of Appeals

Page 821

25 Cal.Rptr. 821

209 Cal.App.2d 207

Tom E. NORCROSS, Plaintiff and Respondent, v. R. W. WINTERS et al., Defendant and Appellant.

Civ. 26403.

District Court of Appeal, Second District, Division 1, California.

Nov. 2, 1962.

Rehearing Denied Nov. 21, 1962.

Robert M. Devitt, Long Beach, John Walter Norby, Long Beach, of counsel, for appellant.

Kirkpatrick & Kirkpatrick, Long Beach, for respondent.

FOURT, Justice.

Defendant subcontractor appeals from a judgment rendered in favor of plaintiff contractor after a trial by the court sitting without a jury. Plaintiff's action for damages was predicated upon defendant's failure to honor his bid to perform certain subcontracting work consisting of the furnishing and installation of chalk and tack boards for the Department of Public Works of the State of California at the agreed price.

Viewing the evidence in the light most favorable to the prevailing party, a re sume of the facts is as follows:

On April 1, 1959, the Department of Public Works of the State of California solicited bids for a construction job known as the Industrial Arts Building of Long Beach State College, Long Beach, California (hereinafter referred to as 'job'). The time set for submission of bids was 2:00 p. m., April 1, 1959. Plaintiff, a general contractor, duly licensed under the laws of the State of California, was a bidder for the job.

For some time prior to the submission date plaintiff had solicited bids from various subcontractors for various phases of the work, to be incorporated into plaintiff's bid for the job.

On April 1, 1959, sometime prior to the time for submission of bids for the job, defendant telephoned to plaintiff a bid to perform, furnish and install the chalk and tack boards in accordance with the plans and specifications for the sum of $4,800.00. The bid was clear and definite, and there were no exclusions or qualifications. A written memorandum made by plaintiff's employee of defendant's oral bid was introduced in evidence (Plaintiff's Exhibit 16).

Defendant's bid of $4,800.00 for the chalk and tack board work was low, and was used by plaintiff in computing, preparing and submitting its bid for the job. Plaintiff's bid was low and he was awarded the general contract for the job. The general contract called for a completion date of July 1, 1960, and contained a liquidated damage clause in the amount of $200.00 per day if completion was not made on that date.

In the joint pre-trial statement which was attached to and incorporated into the pretrial order it was agreed between the parties that '6. Plaintiff made demand upon defendant that he perform, furnish, install all chalk, tack and bulletin boards in accordance with the plans and specifications in accordance with said bid and verbal promise of defendant. 7. Defendant did not perform, furnish and install said chalk, tack and bulletin boards upon said construction project.'

The trial court did not make any express finding relating to communication. ¹ During the argument on defendant's motion for a new trial the trial judge commented on what he termed 'a fantastic lack of communication on both sides.' The reporter's transcript discloses the following in pertinent part:

'THE COURT: I don't think that the question of communication is vital under the Drennan case [i. e. Drennan v. Star Paving Co., 51 Cal.2d 409 ], and I think this present case is as nearly on all fours with the Drennan case as you ever get. * * *

'I mentioned the fantastic lack of communication. If we are to apportion blame here, the subcontractor [i. e. defendant] shows a fantastic lack of tending to business. He didn't return calls and certainly he got some of these letters. It can't be that all of these letters were misdirected and it is inferrable in this case that he was dodging being held to the bid that he made, but I don't think it is necessary for the Court to determine that.'

Although the trial court failed to make any express finding on communication there was much evidence introduced relating to communication by plaintiff. Plaintiff's evidence disclosed the following:

1. Mr. Lawrence H. Frembling, plaintiff's office manager and chief estimator, testified as follows in pertinent part:

'Q Subsequent to the submission of the bid was your bid accepted and was the contract issued and awarded by the Department of Public Works?

'A Yes, it was.

'Q. Would you state to the Court after you were awarded the bid the extent and nature of the communication with * * * [defendant]?

* * *

* * *

'Q Did you prepare and submit a contract to the * * * [defendant]?

'A Yes, I did, on our standard sub form.

'Q When did you do that?

'A I believe the date on it would be April 28th.

* * *

* * *

'Q BY MR. KIRKPATRICK: I direct your attention to Standard from transmittal letter dated April 28, 1959, indicating a transmittal of a contract.

'A Yes, that is correct.

'Q Was this the document that you were talking about that was mailed out on April 28th?

'A That is correct.

* * *

* * *

'THE COURT: It may be received as Plaintiff's Exhibit 1.

'Q BY MR. KIRKPATRICK: I show you what is labeled Tom E. Norcross standard form contract, and it has filed in the date April 27, 1959, and the name * * * [defendant]. Is this a copy of the standard form contract that was transmitted with the letter?

'A It is.

* * *

* * *

'THE COURT: It may be received as Plaintiff's Exhibit No. 2.'

During the cross-examination of Mr. Frembling, the record discloses the following in pertinent part:

'Q With reference to Exhibits 1 and 2, which are copies--at least a carbon copy of a transmittal letter dated April 28, 1959----

'A Yes.

'Q --and a copy of a contract dated April 27, 1959, where did you get those copies to bring them into court?

* * *

* * *

'A Out of my file.

'Q Do you have anything to do with the preparation of the transmittal letter or the subcontract?

'A Yes, I do.

'Q What do you have to do with it?

'A Well, I personally handwrote the subcontract for the typist to type up.

'Q In this instance?

'A. Yes. I instructed her to send it, accompanied by a transmittal, this letter, instructing the particular subcontractor what to do. We were submitting it for his signature and to return the two copies.

* * *

* * *

'Q Do you know from your own knowledge whether or not either of those were sent to Mr. Winters?

'A Yes, I do.

'Q How do you know it?

'A The copies, once they were rendered, I signed the original of this and then directed her to mail it.

* * *

* * *

'Q Isn't it an assumption that this is the usual procedure?

'A This is the procedure and it has been followed faithfully for years.

'Q That is the basis from which you are testifying, you can honestly say?

'A Yes, I can.

'Q And you don't have an independent recollection, then, do you?

'A From April 28, 1959?

'Q Yes.

'A I made no mark on here that I saw or looked at it.

'Q The question is: You have no independent recollection?

'A All right, I don't.'

2. Mrs. Beverly Jean Bailey, who had been an employee of plaintiff, testified concerning her attempts to reach defendant by telephone. The reporter's transcript discloses the following in part:

'Q Mrs. Bailey, in your capacity as an employee for * * * [plaintiff], did you have occasion to attempt to reach Mr. Winters on the telephone?

'A Yes, I did.

'Q When did this occasion occur?

'A It was sometime in July, August, and September.

'Q On how many occasions did you attempt to reach Mr. Winters by telephone?

'A Well, generally speaking, I would say on the average possibly three or four times a day, and three or four days out of the week. Every spare moment that I had I would dial the number.

'Q Were you able to reach Mr. Winters on any of those occasions?

'A No.

'Q Was the line busy or was there just no answer?

'A Most of the time it was busy. It did ring a few times, but there was no answer.

'Q. Now, later on during this period was there a telephone answering service?

'A Yes.

'Q During what portion of this period was the telephone answered by the answering service?

'A Well, it was somewhere around the end of August or in September. I don't remember the exact date.

'Q And after the telephone answering service was installed, on how many occasions would you say you called the * * * [defendant]?

'A I would say at least six or seven messages, if not more.

'Q Were any of them returned?

'A No.'

3. Mr. Frembling testified that the next written communication between plaintiff and defendant was by a letter dated October 7, 1959 (Plaintiff's Exhibit 3). Defendant on direct examination admitted receipt of the letter (Plaintiff's Exhibit 3). He testified that this was the first communication that he had with respect to the matter of this particular job. Defendant further admitted that between April and October he had received notification ('probably six times') that plaintiff had called but asserted that none of the messages was to the effect that defendant's bid had been accepted. Defendant further testified that he did telephone plaintiff approximately five times between April 1, 1959, and October 7, 1959, but never spoke to 'anybody of responsibility.'

4. On October 13, 1959, plaintiff again wrote defendant advising defendant that numerous requests from the Department of Public Works of the State of California had been received for the ship drawings and material samples required by the plans and specifications, and requesting that defendant contact plaintiff immediately. Plaintiff's Exhibit 4 was a copy of the correspondence dated October 13, 1959. Plaintiff's Exhibit 5 was the envelope and the original of the letter dated October 13, 1959, which had been sent by registered mail but had been returned to plaintiff on or about October 27, 1959, unopenced and unclaimed.

5. Mr. Frembling testified that on November 19, 1959, plaintiff contacted the State of California Contractors License Board and that on November 20,...