Yamanishi v. Bleily & Collishaw, Inc.

• Decision Date: 19 December 1972
• Citation: 105 Cal.Rptr. 580,29 Cal.App.3d 457
• Parties: Henry YAMANISHI, Plaintiff, Appellant and Respondent, v. BLEILY AND COLLISHAW, INC., a corporation, et al., Defendants, Respondents and Appellant, Redevelopment Agency of the City of Seaside, Defendant and Respondent. Civ. 27691.
• Court: California Court of Appeals Court of Appeals

Page 580

105 Cal.Rptr. 580

29 Cal.App.3d 457

Henry YAMANISHI, Plaintiff, Appellant and Respondent, v. BLEILY AND COLLISHAW, INC., a corporation, et al., Defendants, Respondents and Appellant Redevelopment Agency of the City of Seaside, Defendant and Respondent.

Civ. 27691.

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

Dec. 19, 1972.

Thompson, Thompson & Hollingsworth, Monterey, for appellant.

Robert J. Williams, San Jose, for respondents.

ELKINGTON, Associate Justice.

Defendant Collishaw Sprinkler, co., Inc., contracted with the Redevelopment Agency of the City of Seaside to construct a public park on the agency's property. Collishaw Sprinkler Co., Inc., then entered into a subcontract with defendant Bleily & Collishaw, Inc., wherein the latter agreed to undertake certain portions of the work including landscaping, paving and grading. Bleily & Collishaw, Inc. in turn entered into 'lower tier' subcontracts with (1) plaintiff Henry Yamanishi for the landscaping of the project, and (2) with Monterey Peninsula Paving & Grading, Inc. for the paving and grading. The subcontracts were prepared by Bleily & Collishaw, Inc. on a form it customarily used. Defendant United Pacific Insurance Company as surety executed a contractor's performance bond which, as relevant here, provided that if Bleily & Collishaw, Inc. 'shall fail to pay for . . . work contracted to be done' by subcontractors, that 'it will pay for the same . . ..' The bond also provided that 'In case suit is brought upon this bond the said surety will pay a reasonable attorney's fee to be fixed by the court.'

Henry Yamanishi and Monterey Peninsula Paving & Grading, Inc. fully performed under their respective subcontracts. Yamanishi was paid $32,329.45 on account of his subcontract, leaving a balance of $5,392.16. Monterey Peninsula Paving & Grading, Inc. was paid $16,199.03, leaving a balance of $2,049.89. Monterey Peninsula Paving & Grading, Inc. assigned its claim to Yamanishi who thereafter commenced this action against Collishaw Sprinkler Co., Inc., Bleily & Collishaw, Inc., and United Pacific Insurance Company on both claims and for reasonable attorney's fees.

After a trial to the court judgment was entered August 20, 1968, adjudging that plaintiff Henry Yamanishi 'take nothing by his complaint,' and that defendants recover their costs. Yamanishi's appeal from that judgment is one of the appeals presently before us.

During the following year it appears that someone paid Yamanishi the face amount of both claims. He thereafter moved in the action for his reasonable attorney's fees. The court entered an 'amended judgment' on August 15, 1969, decreeing that Yamanishi take 'judgment against defendants United Pacific Insurance Co., Collishaw Sprinkler Co., Inc. and Bleily & Collishaw, Inc., for attorney fees in the reasonable amount of $2,500 and for costs in the amount of $216.70, . . ..' An appeal taken by the three defendants from that judgment has not been dismissed and is still pending before us.

On October 31, 1969, the trial court entered a 'second amended judgment' decreeing that Yamanishi 'take judgment against defendant United Pacific Insurance Co. for attorney fees in the reasonable amount of $2,500 and for costs in the amount of $216.70, . . .' An appeal from that judgment is presently before us.

I.

We first consider Yamanishi's appeal from the judgment which was entered against him on August 20, 1968.

We note that although the judgment tersely adjudges 'that plaintiff take nothing by his complaint,' a 'conclusion of law' on which the judgment is in part based recites, 'To the extent that any present claim of Collishaw Sprinkler Co., Inc., against the Redevelopment Agency of the City of Seaside shall include a claim for compensation for that portion of the work described in Conclusion No. II, Collishaw Sprinkler Co., Inc. shall hold said claim as trustee for Bleily & Collishaw, Inc., and plaintiff herein, with the obligation to prosecute said claim with diligence, and to promptly disburse to the parties entitled thereto any funds received on account of said work.'

The parties agree that the judgment of August 20, 1968, was a final determination of the rights of the parties and therefore appealable. Indeed, defendant United Pacific Insurance Co. relies upon such finality in its argument that the trial court had no power a year later to 'amend' it by taxing that defendant attorney fees and costs. While we, of course, are not bound by stipulations of appealability, we agree with the parties. Even assuming the quoted conclusion of law to be a part of the judgment, the trial court's determination nevertheless appears to finally adjudge the rights of the parties leaving nothing further for judicial action and reserving no jurisdiction. (See Woodman v. Ackerman, 249 Cal.App.2d 644, 646--647, 57 Cal.Rptr. 687.)

At the trial it was conceded that Yamanishi and his assignor Monterey Peninsula Paving & Grading, Inc., had fully performed the obligations to which they had bound themselves. The successful defense rested entirey on paragraph (r) of the subcontracts which recited: 'Contractor agrees:

'To pay to the Subcontractor upon receipt of each payment received from the Owner, the portion of said payment allowed to Contractor on account of Subcontractor's work, to the extent of Subcontractor's interest therein less any percentage retained under said General Contract.'

No extrinsic evidence was offered bearing on the meaning attached to this provision by the parties. (See Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., 6. Cal.2d 33, 37--41, 69 Cal.Rptr. 561, 442 P.2d 641.)

It appeared from evidence and stipulations at the trial that a dispute had arisen between the Redevelopment Agency of the City of Seaside and Collishaw Sprinkler Co., Inc., and Bleily & Collishaw, Inc., over the amount due those defendants on their contracts. The dispute apparently arose, at least in part, out of the untimely completion of the park project and certain extra work for which the agency had been billed. Because of the dispute payments otherwise due were withheld from the contractor due were withheld from the contractor defendants. ¹

The trial court concluded that because of the subcontracts' paragraph (r), Yamanishi was not entitled to recover the amounts sought by his action until (1) happening or the 'condition precedent' of payment to the contractor defendants of the withheld amounts, or (2) the legal determination (in another action) that such defendants had in fact been paid such withheld amounts. The rationale of the judgment appeared to be that the 'condition precedent' of payment to the contractor defendants not having occurred, Yamanishi held no cause of action for the unpaid balance of the subcontracts.

Yamanishi contended in the superior court, and now contends here, that the subcontracts' paragraph (r) did not create a condition precedent. Instead he argues that this provision simply stated the times at which the subcontractors would ordinarily be entitled to progress payments for their work, without any intent that it might operate to deny payment to the subcontractor if the...