Opdyke & Butler v. Silver

• Decision Date: 23 June 1952
• Parties: OPDYKE & BUTLER v. SILVER. Civ. 8120.
• Court: California Court of Appeals Court of Appeals

Page 306

245 P.2d 306

111 Cal.App.2d 912

OPDYKE & BUTLER v. SILVER.

Civ. 8120.

District Court of Appeal, Third District, California.

June 23, 1952.

Carl Kuchman, Sacramento, for appellant.

McAllister & Johnson, Sacramento, for respondents.

VAN DYKE, Justice.

Respondents, a co-partnership, as plaintiffs, brought this action against appellant to recover an alleged balance due upon an oral contract. They alleged that on March 15, 1950, they entered into a written contract with appellant to do certain construction work in the remodeling of a building. They next alleged that on the same day and by mutual oral agreement the written contract was abandoned, and that the parties thereupon orally agreed upon the terms of a new contract; that they then adopted new plans and specifications to designate the work to be performed under the oral agreement and that respondent's compensation as to be on the basis of cost plus 10 per cent. Further alleging that cost of the completed work, plus 10 per cent, amounted to $24,253.79 and that only $17,652.38 had been paid, they prayed judgment for the difference. Appellant answered, admitting that the written contract had been entered into and that the compensation thereunder had been cost of the completed work, plus 10 per cent, but appellant alleged that the written contract provided for a maximum limit as to cost of $15,900. He denied that this contract had been abandoned and alleged that all the work that had been done by respondents had been done pursuant to it and under plans and specifications made a part of it. The controversy between the parties centered around this matter of the alleged abandonment of the written agreement and the substitution of an oral contract in lieu thereof. The trial court found that on March 15, 1950, the parties had entered into a written contract and that under it respondents were to perform certain construction work for appellant at cost plus 10 per cent, with total cost not to exceed $15,900; that on the same day and by mutual oral agreement the written contract was abandoned, new plans and specifications were prepared, orders for new and different work were given to respondents and that the parties orally agreed upon a new contract whereby the work was to be done in conformity with the new plans and specifications and the new orders at cost plus 10 per cent, without a maximum limit; that the work had been done, and that the difference between the amount paid and the amount earned amounted to $6,600.52. Judgment accordingly followed.

It is not disputed that on the date alleged a written contract was entered into; that plans and specifications as drawn by an architect were made a part of it and that the contract so executed was full and complete as a construction contract. It contained the usual provisions for supervision of the work by the architect as the work progressed, for the making of progress payments based upon statements for labor and materials incorporated in the work, furnished by the contractor from time to time and approved by the architect. Appellant was given the contractual right to order changes in the work, the contract price to be adjusted accordingly but it was stipulated that all such orders and adjustments should be in writing and that claims for extra cost must be made in writing before executing the work involved. It is appellant's contention that although numerous and material changes were made in the work to be done by respondents during the course of construction, beginning quite early in the history of the work, yet that these changes were made under the written contract; that though they may have justified claims for extra cost neither these changes nor anything else occurring worked an abandonment of the written contract and the mutual adoption of an oral contract. Appellant, therefore, argues that respondent's recovery would have to be in accordance with the written contract limited by the maximum price save for allowable extras, less allowable deductions, where changes worked a saving. Appellant argues further that, there being no support in the record for the court's finding of abandonment of the written agreement, it results that the proof made by respondents was wholly inadequate to support findings or judgment, since it consisted of a running account of work done and material installed by respondents and their sub-contractors without consideration of the maximum price. On the contrary, respondents contend, in line with the findings and judgment of the trial court, that the written contract was abandoned, that the oral contract substituted therefor contained no maximum nor other contract price save cost of labor and material plus 10 per cent and that, therefore, it was proper to prove the amount earned and unpaid by the introduction of their ledger account of such cost of labor and material.

Though the trial court found that the written contract had been abandoned on the very day it was signed, we note that respondent Opdyke, while he testified in respondents' behalf as to the abandonment of the written, and the adoption of the oral, contract, with different plans and specifications governing work to be done, yet he did not claim, though he appears to have been the managing agent of the partnership in respect of the appellant's work, that there had been an abandonment until May or June, after work had been under way for a considerable time. And no testimony was given that the parties ever expressly agreed to abandon the written contract or to adopt the alleged oral agreement. Opdyke simply assumed, according to his testimony, that such abandonment and adoption had been worked by reason of the constant changes, and the constant interference with the work, by appellant. He testified that he contended there came a time when the written contract no longer applied and they were no longer working under it and that this occurred upon a day when appellant, expressing dissatisfaction with the architect's services, told Opdyke that he (Opdyke) was as good an architect as the one the parties had agreed upon and for him to go ahead and run the job as he saw fit. He said 'That contract [the written contract] was based upon the plans and specifications as they were originally drawn. There being numerous changes that developed that in my opinion made the contract, drawn as it was stated in the original agreement a cost-plus agreement.' This culminating incident, in the opinion of respondent Opdyke, worked the abandonment of the written contract with its maximum price limitation and its provisions for extras, and amounted to the making of a new agreement, on a straight cost plus basis. He could fix no definite date for this happening, but said it was about the time when they had started the plastering and was either in May or June of 1950, some two months after the written contract was executed and some six weeks after the building permit was taken out and the first labor costs incurred. In addition to the foregoing and as pertinent to the question of when, if at any time, the abandonment of the old and the adoption of a new contract occurred, Opdyke testified that he submitted bills regularly to appellant which were approved by the architect and paid. He identified bills dated May 2d, June 2d, July 13th and August 1st of 1950. The bill of July 13th resulted in a 'Certificate of Payment' issued by the architect for the amount called for in the sum of $8,767.63. The certificate referred to the 'Original Amount of Contract' in the sum of $15,900.00 and to 'Extras' in the sum of $305.51, which, according to the certificate, raised the contract price to $16,205.51. The architect stated on the certificate this total sum did not include 'extra changes by the owner'. The certificate certified that there had been theretofore approved by the architect the sum of $6,032.70, which, when added to the face of the certificate, made a certified total of $14,800.33, leaving a balance on the original contract, plus allowed extras, and without extra changes by the owner of $1,405.18. Opdyke...