Peabody Seating Co. v. Superior Court for County of LosAngeles

• Decision Date: 18 April 1962
• Citation: 20 Cal.Rptr. 792,202 Cal.App.2d 537
• Court: California Court of Appeals
• Parties: PEABODY SEATING CO., Inc., a Corporation, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent, American Seating Company, Real Party in Interest, Gust K. Newberg Construction Co., a Corporation, Real Party in Interest. Civ. 26305.

Page 792

20 Cal.Rptr. 792

202 Cal.App.2d 537

PEABODY SEATING CO., Inc., a Corporation, Petitioner, v.SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, RespondentAmerican Seating Company, Real Party in InterestGust K. Newberg Construction Co., a Corporation, Real Party in Interest.

Civ. 26305.

District Court of Appeal, Second District, Division 4, California.

April 18, 1962.

Nichols, Stead, Boileau & Lamb, Pomona, for petitioner.

No appearance, for respondent.

Kirkpatrick & Kirkpatrick, Long Beach, for real party in interest, American Seating Company.

MacFarlane, Schaefer & Haun, Los Angeles, for real party in interest, Gust K. Newberg Construction Co.

PER CURIAM.

American Seating Company(hereinafter referred to as American) instituted a declaratory relief action naming as defendants the City of Long Beach(hereinafter referred to as City); Gust K. Newberg Construction Co.(hereinafter referred to as Newberg); Stanley Mattox, individually and doing business as Gymnastic Supply Company, and Gymnastic Supply Company, a corporation (hereinafter referred to as Gymnastic).The action involves a determination of the rights, duties and obligations of the parties in connection with the installation of stadium seats in a convention and exhibit hall being constructed for the City by Newberg.

The City submitted to various contractors for bids certain plans and specifications for the construction of the building, all bids to be submitted by August 17, 1960.Item 1 thereof, called the 'Base Bid,' provided for the installation of 'hardwood type' stadium seating.The bidding instructions required the bidding contractors to also submit bids on Items 2, 3 and 4; Item 4, Alternate B, provided for the installation of an 'upholstered type' chair.The instructions required the bidders to set forth the name and location of the place of business of each subcontractor who would perform labor or render services to the general contractor in the performance of said construction project in an amount in excess of one-half of one per cent of the general contractor's total bid.

Defendant Newberg, in its bid as submitted on August 17, 1960, designated the subcontractors who would perform labor and render services in the event the contract was awarded to it.It listed the name of Gymnastic Supply Company opposite the words 'stadium seating.'It did not separately name or designate a subcontractor to manufacture and install upholstered type seating.

Prior to the submission of bids to the City on August 17, 1960, American submitted to Newberg its bid of $213,000 for furnishing and installing the upholstered stadium seating under Bid Item 4, Alternate B. American alleges that this was the lowest bid; that Newberg used this bid in computing and submitting its bid to the City, but that Newberg inadvertently failed to designate American therein as such subcontractor; that prior to the letting of the general contract for said project, Newberg supplemented its bid by delivery to the City of a letter dated October 14, 1960, which states that 'the upholstered seats which are to be furnished under Specification 31, Alternate # B, will be as furnished by the American Seating Company'; that the City awarded the contract to Newberg, exercised its option to have the upholstered type seat installed in lieu of the hardwood type, and incorporated a provision therefor into said contract.

Defendant Newberg has a contract with Gymnastic and intends to have Gymnastic install the upholstered type stadium seating manufactured by Peabody Seating Company, petitioner herein.Prior to the submission of Newberg's bid to the City, Gymnastic did not submit to Newberg a bid for the upholstered type seating.It is the position of Newberg that in designating Gymastic as the subcontractor who would install the stadium chairs, it intended such subcontractor to install the stadium chairs regardless of which type would be finally installed; that the specification of the name of the manufacturer was not required under the Municipal Code or the bidding instructions; that both types of chairs are fixtures, thus it was not, in any event, required to specify in its bid the subcontractor who would furnish and install said chairs; and that under its contract with the City it is entitled to furnish any one of three seats approved by the architect ¹ and may have such seats furnished by any person, firm or company that it desires.Newberg further asserts that it inadvertently advised the City in its letter of October 14, 1960, that the stadium seats would be manufactured by American; that thereafter it discovered its error and on December 31, 1960, advised the City that its subcontractor Gymnastic would furnish chairs manufactured by Peabody Seating Company(hereinafter referred to as Peabody).Newberg asserts that it at no time advised American that it intended to designate or had designated it as a subcontractor or supplier under its contract with the City; that there was no contractual obligation between itself and American.

American contends that the designation by Newberg of Gymnastic as a subcontractor to install the stadium chairs under the 'Base Bid' is not a designation of the subcontractor to furnish and install the upholstered seating under Bid Item 4, Alternate B; that, based upon applicable laws and ordinances, its negotiations with Newberg resulted in a contract; that its written bid was orally accepted; that American is obligated to Newberg to furnish and install upholstered seating per said bid; that the designation of American in the October 14 letter was a correct and proper designation of a subcontractor which cannot be changed; that Newberg is under a contractual obligation to the City to provide seating manufactured by American, and that Newberg is estopped from providing the upholstered seat under Bid Item 4, Alternate B, manufactured or installed by any person or firm other than American.

The issues as framed by the above named parties in the pretrial statement of November 16, 1961, at which time trial was set for December 19, 1961, are as follows: 1.Was the naming or designation of a subcontractor to furnish and perform stadium seating required in connection with the submission of bids on the subject project?2.Was there an effective designation or naming of the subcontractor to perform the 'upholstered type' stadium seating as provided in Section 31 of the specifications, Bid Item 4, Alternate B? 3.If so, can the subcontractor manufacturing, furnishing or installing the stadium seating upon the construction project be changed or substituted under the facts and circumstances herein?4.Declaration of the contractual obligations pertaining to stadium seating between the City and Newberg.5.Determination of the rights and obligations between American and Newberg; what contractual obligation, if any, existed between these two parties.6.Is the doctrine of estoppel applicable?7.Is the doctrine of laches applicable?

Due to a congested court calendar, trial date was continued from December 19 to December 20, 1961, on which date counsel for Gymnastic moved that Peabody be joined as an indispensable party under Code of Civil Procedure, section 389.The court made its order that Peabody (and General Seating Company)²'be brought into this action and be deemed as partiesdefendant herein' and the cause was continued to January 30, 1962.On December 27, 1961, petitioner was served with summons, complaint and pretrial orders.

On January 30, American moved for separate trials, requesting that the trial involving the original parties be made separate from the one involving Peabody.The motion was denied that date.Also, on January 30, the court sustained the special demurrer of Peabody (filed the previous day), 'plaintiff to amend as to defendantPeabody Seating Co. by February 6, 1962.'Trial was continued to March 8, 1962.American states that it declined to amend the complaint 'inasmuch as it had no knowledge or information of any facts which would in any way state a cause of action against said Peabody Seating Co., Inc.'

On March 5(3 days before trial) Peabody filed an answer and cross-complaint.It also filed a motion to set aside and vacate the pretrial order and the trial date, to nullify all pretrial proceedings, and to place the matter off the civil action list.The motion was taken under submission, resulting in a further continuance of the trial date to March 28.The cross-complaint alleges the contract between Newberg, as general contractor, and Gymnastic and General Seating Company, as subcontractors to supply and install the stadium seats; that Peabody thereafter contracted with said subcontractors for the manufacture of said seats; and that, pursuant to said contract, it has expended considerable money in the manufacturing process generally and in the purchase of materials.The cross-complaint and the answer thereto present no new or additional controversy.Peabody merely disputes the contention of American that it has a contract with Newberg, and claims that the contract between Newberg and Gymnastic is valid.

On March 6, American filed a motion to strike the answer and cross-complaint, or for separate trials.On March 13, the following minute order was made: 'Motion to strike answer and cross-complaint is denied.Motion for separate trials is granted so that issues framed by existing pre-trial orders shall be heard in one trial and all other issues now or hereafter arising, are [sic] particularly those in the pleadings of Peabody Seating Company shall be separately tried.'³The trial judge expressed the opinion...