Rogers v. Whitson

• Citation: 39 Cal.Rptr. 849,228 Cal.App.2d 662
• Court: California Court of Appeals Court of Appeals
• Decision Date: 27 July 1964
• Parties: Phillip F. ROGERS, Plaintiff and Appellant, v. Sam WHITSON, Jo Lin Arabian Horse Ranch, Defendants and Respondents. Civ. 21434.

Page 849

39 Cal.Rptr. 849

228 Cal.App.2d 662

Phillip F. ROGERS, Plaintiff and Appellant, v. Sam WHITSON, Jo Lin Arabian Horse Ranch, Defendants and Respondents.

Civ. 21434.

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

July 27, 1964.

Robert E. Hunter, Dorothy von Beroldingen, San Francisco, for appellant.

Pelletreau, Gowen, Moses & Porlier, J. Vance Porlier, San Pablo, for respondents.

SULLIVAN, Justice.

In this action on a book account and an account stated, plaintiff appeals from an adverse judgment rendered by the court sitting without a jury.

Plaintiff is a licensed excavating, grading and paving contractor. His brother, Ralph A. Rogers, is plaintiff's superintendent. Defendant Dr. Claude S. Whitson, sued herein as Sam Whitson, is the owner of the Jo Lin Arabian Horse Ranch properties (hereafter referred to as Jo Lin Ranch) approximately one-third of which was being subdivided during the latter part of 1958. ¹ At all times herein material, Dr. Whitson's brother James Whitson was his business manager and personal agent and as such was in charge of the subdivision project. James Whitson was not a licensed contractor.

In August or September 1958, while plaintiff was doing certain highway construction work in Contra Costa County, he employed for a short period of time one Thomas Dolan, also named as a defendant herein, ² as a 'dozer' operator. Ralph Rogers testified that Dolan returned during the first part of October 1958 and told the witness 'that he had a job and they needed dozers on that job, would I be interested in renting out dozers to him, to his company where he was working.' Rogers replied in the affirmative and explained to Dolan the charges involved. Dolan returned a week later and said, 'We will take them,' but 'We'll settle for the $22.00 an hour, and the $18.00 an hour, but we will handle they pay roll and the maintenance of the rig and we will pay you, we will deduct $6.00 an hour.' According to Rogers, Dolan indicated that by 'we' he meant the Jo Lin Ranch, stating that the equipment would be used there and that the ranch would take care of the payroll. ³ The equipment, consisting of three bulldozers, was delivered to the ranch a short time later, the first dozer arriving on October 13, 1958.

Ralph Rogers maintained for plaintiff records of the actual time the equipment was in use at the ranch, which were introduced in evidence by plaintiff. Rogers obtained data for these records directly from a record book maintained by Dolan on the job. The witness testified that he made several visits to the job principally to determine if the equipment was in use and how long it would be needed. Although he never met Dr. Whitson there, he met and talked to James Whitson several times, Dolan on one occasion introducing him to James Whitson, saying: 'This is Ralph Rogers and, Ralph, I want you to meet Jim, Jim Whitson, he's the wheel on the job, he's the big wheel on the job.'

Ralph Rogers further testified that at the end of the job he asked Dolan about payment and the two men, at Dolan's suggestion, went to the ranch to see James Whitson about the matter. An argument thereupon ensued between Dolan and Whitson over certain charges. According to Rogers, he then gave Whitson a statement, prepared in plaintiff's office, showing a balance due of $4,156 and Whitson stated that 'he'd see to it that we got paid. It should be a week or ten days.' When at the end of this time no payment was forthcoming, the witness himself went over to Dr. Whitson's office and presented the latter with the bill, who told him that 'he would see to it that we got paid.'

Sometime later, Ralph testified, plaintiff and he, being pressed for money both visited Dr. Whitson at the latter's office at which time they again presented him with a bill. After cursorily checking the bill, the doctor told both men they would get the money but suggested that they 'go down to escrow and the title company, down there, and give them the information and make sure that we were on their list.' Since the title company was then closed, they telephoned said company later in the week whereupon they learned that the title company had no escrow or other records concerning the Jo Lin Ranch. Plaintiff then referred the matter to his counsel. On cross-examination, Ralph Rogers testified that he personally did not have a copy of the bill submitted to Dr. Whitson, that there 'should be' a copy somewhere, and that Dolan was never billed for the work.

Plaintiff testified that he had no personal knowledge of the negotiations that took place between his brother and Dolan or James Whitson. However, he corroborated his brother's testimony about their visit to Dr. Whitson's office and what then and there transpired. Thereafter his brother Ralph attended to the collection of the bill. Plaintiff stated that he had searched his records but could find no copy of the bill. ⁴

Defendant, called as an adverse witness under section 2055 of the Code of Civil Procedure testified he had no personal acquaintance with Dolan prior to the beginning of the subdivision work. He explained that the lots comprising the subdivision had been sold to a contractor on the basis of being furnished to him finished, complete, and ready for building. Dolan had been referred to defendant's brother by a third party as a man who would grade, excavate, and fill the lots. He (Dolan) had made an attractive offer, was willing to go along with the payment schedule, and would accept a boat which defendant wished to sell as part payment for his services.

Defendant testified that Dolan ran the job; that the latter was to do the work according to the engineering specifications; that Dolan took care of everything including the hiring of equipment and operators; that Dolan alone had the authority to hire and fire operators and workmen; that Dolan rather than defendant was responsible for and attended to the payroll; and that defendant and his brother, James Whitson, understanding that Dolan was a licensed contractor, looked to him directly to handle the job. ⁵ Defendant had no written contract with Dolan; had no knowledge whether or not a contractor's bond had been furnished; and had no knowledge as to whether a notice of nonresponsibility had been posted.

At the conclusion of the above testimony under section 2055, plaintiff rested and defendant testified in his own behalf. He explained the purpose of the escrow at the title company and recounted how a dispute arose between Dolan and himself over Dolan's bills which defendant thought to be padded and excessive. Finally Dolan brought suit against defendant which was eventually settled, Dolan receiving a total payment of $11,250, part of the funds coming from the above escrow.

However defendant positively denied that he had ever received or even seen any bill from plaintiff or his brother Ralph or that he had ever seen any bills other than those by Dolan himself. According to defendant, the first time that he knew the Rogers brothers existed was in January 1959 when the pair called at his office. They told defendant that they were very much concerned over their account with Dolan and asked him if he had paid Dolan yet. Defendant answered in the negative, explaining his dispute with Dolan over the latter's padded and excessive bills. The Rogers then inquired as to the possibility of defendant protecting their bills. Defendant told them, as he had told other creditors of Dolan's, of the escrow setup to cover what defendant felt he owed Dolan stating 'your lien time is still good, go present your lien as the other creditors have with the title company and to Mr. Knox, Mr. Dolan's attorney.' Defendant further testified that he never agreed to pay Rogers' bill personally and that the Rogers never asked him to pay the money directly to them. As far as defendant was concerned his dealings were with Dolan. On cross-examination defendant also denied that his brother James had informed him about being contacted by Ralph Rogers and denied that James had ever given him any of plaintiff's bills which were claimed to have been delivered to James.

James Whitson testified that, acting on his brother's behalf, he hired Dolan believing him to be a licensed contractor. Dolan was hired on a daily basis and without a written agreement, his pay to be determined by his submitting a daily bill. The bills received from Dolan, which included other equipment as well as that of plaintiff, reflected an hourly rate, as agreed by the parties, for the various pieces of equipment in use. Pursuant to the agreement, Dolan maintained the equipment, paid the operators and paid the gas, oil and any other expenses. The witness corroborated his brother in stating that he exercised no supervision over Dolan as far as telling him where or how to grade or excavate. This was done by the engineer. Although admitting that he had met Ralph Rogers on two occasions at the ranch, James Whitson positively denied ever having received a bill from either of the Rogers brothers, either personally or by mail. Although a subdivision bond had been filed, a contractor's bond had not. James Whitson was not a licensed contractor.

So far as is here pertinent, the court found that defendant had not become indebted to plaintiff in any amount on any legal theory asserted; that defendant had entered into an agreement with Dolan, who was an unlicensed independent contractor, believing in good faith that the latter was licensed; that Dolan had rented certain equipment from plaintiff, said rentals having been made to the former as an independent contractor and not as the agent, servant or employee of defendant; that defendant was not a licensed contractor; and that there was no contract, express or implied, between plaintiff and defendant. Judgment was rendered for defendant.

Plaintiff's diffuse specifications of error are reducible to two main contentions on appeal: (1) That defen...