Travelers Indem. Co. v. McIntosh

• Citation: 112 Cal.App.2d 177,245 P.2d 1065
• Court: California Court of Appeals
• Decision Date: 03 July 1952
• Parties: TRAVELERS INDEMNITY CO. v. McINTOSH. Civ. 8080.

Page 1065

245 P.2d 1065

112 Cal.App.2d 177

TRAVELERS INDEMNITY CO. v. McINTOSH.

Civ. 8080.

District Court of Appeal, Third District, California.

July 3, 1952.

Hearing Denied Aug. 28, 1952.

Forrest E. Macomber, Gordon J. Aulik, Stockton, for appellant.

R. P. Wisecarver, San Francisco, for respondent.

PEEK, Justice.

This is an appeal by defendant from a summary judgment entered in favor of plaintiff and respondent The Travelers Indemnity Company.

The complaint alleges that on January 5, 1945, the Indemnity Company issued a faithful performance bond for A. R. Liner, a contractor, who had entered into a contract to construct a hospital for Yolo County; that Liner defaulted on said contract, and the Indemnity Company was thereby compelled to take over and complete the building at a cost to it in excess of $20,000; that Liner compromised the loss at that figure, giving plaintiff a four year installment note for $20,000, payable at the rate of $5,000 per year, the first payment to be 'secured' out of the first moneys that would become due to Liner on a contract he had with Modesto City School District; that the payments due thereunder had been previously assigned to defendant and appellant McIntosh, the underwriter under the second contract, which assignment McIntosh accepted and agreed to pay. The assignment reads:

'To: J. C. McIntosh

Stockton

California.

'Whereas, I have heretofore * * * assigned to you all moneys due or to become due to me on account of the construction and completion of the * * * School * * * and

'Whereas, I am indebted to the Travelers Indemnity Company * * *.

'Now, Therefore, I hereby assign out of the first moneys due to me on account of said * * * School job, the sum of Five Thousand and no/100 ($5,000.00) Dollars unto Travelers' Indemnity Company and I do hereby authorize and instruct you to pay over said sum to Travelers' Indemnity Company * * * out of the first moneys due to me on account of said job.

'Dated: May 18, 1948.

'(Signed) A. R. Liner

'I hereby accept the within assignment and direction, and I will pay unto Travelers' Indemnity Company * * * the said sum * * * in accordance with said instructions, out of the first moneys due to A. R. Liner on account of said * * * job.

'(Signed) J. C. McIntosh

'That the prior assignment from A. R. Liner to J. C. McIntosh referred to in the following document * * * is in words and figures as follows:

'To Modesto City, School District * * * For Value Received, I do hereby assign * * * unto J. C. McIntosh, all moneys whatsoever due or to become due to me on account of the construction and completion by me of the * * * School * * *.

'(Signed) A. R. Liner'

'Accepted

Modesto City School District * * *.'

The complaint concluded with the allegations that McIntosh received moneys in excess of $5,000 from the School District but had refused to pay the same, and a prayer for judgment in that amount.

A general demurrer by McIntosh was overruled, and his answer which was thereafter filed, denied only the allegations of paragraph 6 of the complaint, which were that he had received more than $5,000 from the School District. Affirmatively he alleged in substance that no profit was made on the job hence Liner had no money due him under the contract.

The Indemnity Company moved for a summary judgment, its affidavits being to the effect that McIntosh had received a $27,000 payment from the School District. The counter-affidavits were to the effect that appellant was indemnitor to Pacific Indemnity Company, the surety, on the Modesto contract; that the assignment had been made but all moneys had been paid out in costs, there actually being a loss on the job after allowance for depreciation was taken, and that therefore nothing was due to Liner or the Indemnity Company for the reason that no profit was made.

The motion was granted and this appeal was then taken from the judgment entered.

Since it appears, as defendant contends, that the trial court abused its discretion in granting said motion it becomes unnecessary to discuss the additional contentions made by defendant.

The situation presented by the instant case comes squarely within the rule as enunciated in Walsh v. Walsh, 18 Cal.2d 439, 116 P.2d 62, 65. In that case the plaintiff (who was the adopted son of the defendant) brought an action to recover money to which he claimed to be entitled under the modified property settlement agreements between his adoptive parents. Defendant denied she owed plaintiff any sum whatsoever under said agreements and moved for a summary judgment. In opposition to defendant's motion plaintiff submitted, by affidavit, his version of the proper interpretation of the agreements. The trial court 'After hearing of the motion and consideration of these divergent views of the litigants as to the meaning attributable to the language employed in these agreements * * * resolved the conflict in favor of the defendant and entered summary judgment dismissing plaintiff's complaint.' Plaintiff appealed, contending this action to be an abuse of the trial court's discretion. The Supreme Court, in passing upon this contention there said:

'* * * in passing upon a motion for summary judgment, the primary duty of the trial court is to decide whether there is an issue of fact to be tried. If it finds one, it is then powerless to proceed further * * * issue finding rather than issue determination is the pivot upon which the summary judgment law turns. * * *

'We are of the opinion * * * that the words * * * used are ambiguous and indefinite. * * * On its face the phraseology * * * considered in its entirety is reasonably consistent with either of the interpretations advanced here by the litigants. When a contract is in any of its terms or provisions ambiguous or uncertain, 'it is primarily the duty of the trial court to construe it after a full opportunity afforded all ...