Wheeler v. Oppenheimer
| Citation | 140 Cal.App.2d 497,295 P.2d 128 |
| Court | California Court of Appeals |
| Decision Date | 04 April 1956 |
| Parties | Charles H. WHEELER, Plaintiff and Appellant, v. Hortense H. OPPENHEIMER, Executrix of the Estate of Bella Heller, Deceased, Defendant and Respondent. Civ. 21515. |
Clyde P. Harrell, Jr., Woodland Hills, for appellant.
Leland & Plattner and N. Stanley Leland, Los Angeles, for respondent.
Appeal by plaintiff from a judgment of dismissal entered on an order sustaining a demurrer to the second amended complaint with leave to amend. Plaintiff declined to amend. Plaintiff also appeals from the order sustaining the demurrer and the order for dismissal after he failed to amend. These orders are nonappealable and the appeals therefrom will be dismissed. Berri v. Superior Court, 43 Cal.2d 856, 860, 279 P.2d 8.
The second amended complaint alleges: Plaintiff is a licensed building contractor. Bella Heller, now deceased, was a resident of the County of Los Angeles. Prior to July 11, 1951 plaintiff caused a residence to be constructed on described realty. After completion of the residence Bella Heller was indebted to plaintiff in the sum of $5,102.37. To evidence the indebtedness the deceased executed to plaintiff her promissory note dated July 11, 1951 for $5,102.37. On November 11, 1953 plaintiff and the deceased entered into a contract in writing whereby the deceased agreed to sell and plaintiff agreed to buy the property on which the residence had been constructed for $42,500. A copy of the contract is a part of the complaint as an exhibit. As additional compensation for the execution of the contract, plaintiff agreed with the deceased that he would cancel the indebtedness evidenced by the note on which $3,750 then remained unpaid. Plaintiff has performed all conditions of the contract on his part to be performed; and is ready, willing, and able to complete the contract in accordance with its terms and conditions; and hereby offers to surrender the note for cancellation.
The second amended complaint alleges further: Bella Heller died November 13, 1953 and defendant Oppenheimer is the executrix of her will. On June 18, 1954 plaintiff caused to be filed with defendant a claim against the estate for $16,700. The claim was based on the damage sustained by plaintiff and not on the indebtedness evidenced by the note. A copy of the claim is part of the complaint as an exhibit. On information and belief, that defendant knew of the existence of the note and knew that part of the consideration for the contract was the cancellation of the note. On March 18, 1954 defendant refused to carry out the valid provisions of the contract and refused to convey the property, and in doing so acted in bad faith. On that date the reasonable market value of the property was $65,000. On July 2, 1954 defendant denied plaintiff's claim. Plaintiff sustained damage in the sum of $16,700.
The contract of November 11, 1953 contains this provision:
'If Seller does not complete sale it is agreed that she will pay all accured [sic] Costs and expenses, Seller only to be liable for such costs and expenses.'
The demurrer was sustained on the ground that by reason of this provision the only liability of the deceased was to repay to plaintiff his costs and expenses, none of which was alleged. Plaintiff contends the quoted provision is for liquidated damages and that it is void under sections 1670 1 and 1671 2 of the Civil Code. Defendant contends it is merely a limitation of liability.
We think the provision was not intended to prescribe a definite liability, i. e., liquidated damages, but is a limitation on the maximum possible recovery for actual loss or damage alleged and shown by evidence. It imposes a limitation within which damages might be proved. The validity of the condition is not open to doubt.
The Restatement says:
(Rest., Contracts, § 339, Comment g.) It is said that 'A limitation in a contract on the amount which may be recovered for breach thereof is not a provision for liquidated damages.' 25 C.J.S., Damages, § 113 a, p. 682. Similar contractual limitations of liability have frequently been upheld. (Limitation of liability of warehousemen: Hischemoeller v. National Ice, etc., Storage Co., 46 Cal.2d 318, 294 P.2d 433; Taussig v. Bode & Haslett, 134 Cal. 260, 66 P. 259, 54 L.R.A. 774. Limitation on liability of contract highway carrier: Gardner v. Rich Mfg. Co., 68 Cal.App.2d 725, 158 P.2d 23; cf. Gardner v. Basich Bros. Construction Co., 44 Cal.2d 191, 281 P.2d 521. Limitation of liability for defective articles sold: United Iron Works v. Standard Brass Casting Co., 98 Cal.App. 517, 277 P. 183; Artukovich v. Pacific States, etc., Pipe Co., 78 Cal.App.2d 1, 176 P.2d 962. Limitation of liability of carrier for breach of obligation to deliver freight: Pierce v. Southern Pac. Co., 120 Cal. 156, 47 P. 874, 52 P. 302, 40 L.R.A. 350. Limitation of liability for mistake in listing name in phone directory: Riaboff v. Pacific Telephone & Telegraph Co., 39 Cal.App. Supp.2d 775, 102 P.2d 465. Limitation in a lease of liability for damage caused by fire: Stephens v. Southern Pac. Co., 109 Cal. 86, 41 P. 783, 29 L.R.A. 751. Limitation of liability on baggage check for loss of checked baggage: Cunningham v. International Committee of Y.M.C.A., 51 Cal.App. 487, 197 P. 140. Limitation on liability of telegraph company for failure to send or error in sending a telegram or telegraphic money order: Hart v. Western Union Tel. Co., 66 Cal. 579, 6 P. 637; Redington v. Pacific Postal Telegraph Cable Co., 107 Cal. 317, 40 P. 432; Coit v. Western Union Tel. Co., 130 Cal. 657, 63 P. 83, 53 L.R.A. 678. Limitation of liability...
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...is unconscionable. See Three-Seventy Leasing Corp. v. Ampex Corp., 528 F.2d 993, 998 (5th Cir.1976); Wheeler v. Oppenheimer, 140 Cal.App.2d 497, 295 P.2d 128 (Cal. Dist.Ct.App.1956). Plaintiffs seek to avoid the effect of the limitation clauses by arguing that they are inapplicable to unlaw......
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...74, 70 Cal.Rptr.2d 85 (emphasis original, citations omitted).4 Indeed, the Farnham court cited with approval Wheeler v. Oppenheimer, 140 Cal.App.2d 497, 500, 295 P.2d 128 (1956), which establishes that the California courts will enforce contractual limitations on the amount of money damages......
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