Semas v. Bergmann
| Decision Date | 10 March 1960 |
| Docket Number | No. 18626,18626 |
| Citation | 178 Cal.App.2d 758,3 Cal.Rptr. 277 |
| Parties | Leonard SEMAS, doing business under the name of Leonard Semas & Co., Plaintiff, Cross-Defendant and Respondent, v. Conrad E. BERGMANN and Leo A. Bergmann, Defendants, Cross-Complainants and Appellants, American Surety Company of New York, Cross-Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Watson & Tedesco, by William E. Watson, San Jose, for appellants.
Machado, Feeley & Machado, San Jose, for respondent.
Defendants and cross-complainants appeal from a judgment in favor of plaintiff and cross-defendant in the principal sum of $5,217.60 and for foreclosure of a mechanic's lien, presenting solely the question of whether there is substantial evidence to support the finding that plaintiff's late performance was excused for 49 days.
Record.
Plaintiff and defendants entered into a contract on October 31, 1955, in which plaintiff agreed to construct a store building for defendants for the sum of $62,775. The contract provided for completion of the building by January 15, 1956, and contained a penalty and bonus clause to the effect that plaintiff would be liable to defendants for $100 per day for each working day the work remained uncompleted, and defendants liable to plaintiff for a similar amount for each working day that the building was completed ahead of schedule. The building was not completed until 69 days after that date. Defendants contend that the delay was due to inclement weather, of which plaintiff was required to take the risk, and plaintiff's incompetence. Plaintiff contends it was due to acts of defendants. The court found 'that plaintiff did not fail to complete said work set forth in said contract and change orders and extras for a total period of sixty-nine (69) work days but for a period of twenty (20) and no more,' and reduced the balance due plaintiff on the contract by $2,000. There were certain other offsets which the court allowed in reaching the balance due under the contract of $5,217.60. No challenge is made of this figure, except as it would be affected by a determination as urged by defendants that they should be allowed a credit of $100 per day for 69 days instead of for only 20 days as allowed.
The Court's Finding Is Supported.
At the trial plaintiff raised a number of factors which he contended excused his delay in performance. Evidence thereon was offered by both parties. A study of the record shows that on practically all of them there was a conflict in the evidence which the court resolved in plaintiff's favor.
It is well settled that a reviewing court cannot reweigh the evidence to determine where the preponderance of the evidence lies; but its duty begins and ends with a determination of whether there is any substantial evidence, whether contradicted or uncontradicted, which supports the finding of fact. The test is not whether there is substantial conflict in the evidence but whether there is substantial evidence in favor of the respondent. See McKinley v. Buchanan, 176 Cal.App.2d 608, 1 Cal.Rptr. 573, for a list of recent authorities on the subject.
The court did not make express findings upon each of the factors above mentioned, contenting itself with the general finding above set forth to the effect that only 20 days of the delay was not justified. Therefore we are required to determine whether there is substantial evidence to support the implied finding that a sufficient number of the factors were not plaintiff's fault and excused 49 days of the delay.
We will consider the main factors to which plaintiff claimed the delay was due: (1) The failure of defendants to remove a house on defendants' adjoining property which the plans and specifications show was to be removed and which plaintiff testified that defendants' architect assured him would be removed so that the area covered could be used by plaintiff for access to the rear of the building to be constructed.
As to this issue plaintiff and his witnesses testified that the work was delayed 3 weeks as material had to be brought in from the front of the lot and through the building as it was being constructed; that while he endeavored to use and adjoining driveway and alley such use was not satisfactory as a truck mired in the mud. Also the owner of the driveway refused him permission to use it. See Greathouse v. Daleno, 1922, 57 Cal.App. 187, 206 P. 1019, where it was held that the failure of the owner to remove trees, which he was to remove, excused timely performance by a contractor...
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