Judson Manufacturing Co. v. Lutge

HENSHAW, J. Plaintiff sued to recover for the value of materials furnished to defendant. It charged in two counts; the first an express contract with a fixed price for the materials; the second in quantum valebat. The court gave plaintiff judgment in the amount sued for, and from that judgment and from the order denying his motion for a new trial defendant appeals. The material which plaintiff agreed to and did furnish was steel and iron to be used by defendant in the performance of his contract in the construction of the “New Coliseum Building” in the city and county of San Francisco. By his contract with th’e owners defendant agreed to perform his contract within eighteen working days. He pleaded that plaintiff had delayed in the delivery of the material, and did not deliver the material until after the agreed time, ‘ ‘ and that by reason of the failure of said plaintiff to perform its said contract with defendant according to plans, specifications, and details as aforesaid, said Coliseum Amusement Company (the owner of the premises) has claimed and does claim that this defendant has caused a damage in the sum of $4,000.” *567 The court found that plaintiff duly performed its contract in all respects, saving that it did not furnish the defendant the material within the agreed time. It further found that the material when furnished was accepted and used by the defendant, and that the defendant was not in any respect damaged by the delay. The court, however, found both the value of the material under the count in quantum valebat, and found also the contract price of the material in the same sum. It further found the performance of the contract, excepting in the matter of the delay of the delivery, and that this delay worked no damage to defendant, hence the allowance of interest was proper as addressed to the finding of the contract price. Defendant’s own testimony was to the effect that he suffered no damage saving for the delay. But in this regard he merely pleads, “that by reason of plaintiff’s said breaches of its said contract with this defendant, this defendant has been damaged in the sum of $4,000.” The damage for which recovery is here sought is, under every rule of pleading and authority as to damage, one which must be specially and specifically pleaded. (Cole v. Swanston, 1 Cal. 51, [52 Am. Dec. 288]; Stevenson v. Smith, 28 Cal. 102, [87 Am. Dec. 107] ; Nunan v. San Francisco, 38 Cal. 689; Mitchell v. Clarke, 71 Cal. 163, [60 Am. Rep. 529, 11 Pac. 882]; Harron-Rickard & McCone v. Wilson-Lyon & Co., 4 Cal. App. 488, [88 Pac. 512]; 2 Sutherland on Damages, 3d ed., see. 419.) Defendant’s failure specifically to plead this special damage which here he asserts he suffered, justified the court’s refusal to receive evidence upon it, and demanded the finding which the court made against it. Something is said about a concerted fraud practiced upon the owner of the building by plaintiff and defendant in the substitution of iron rods for- steel. But the evidence establishes that plaintiff in furnishing the iron rods furnished precisely those which by its contract with defendant it had agreed to furnish, and if this were in fact a fraud upon the owner it was a fraud of the defendant and not of the plaintiff. The judgment and order appealed from are affirmed. Melvin, J., and Lorigan, J., concurred.