Flinn & Treacy v. Mowry

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 483 The plaintiffs entered into a contract with the defendant to do certain work upon Laguna street, in San Francisco, in front of her property, and brought the present action to recover after its completion the amount agreed to be paid by her, and to have the same decreed a lien upon her property. The court rendered its decision in favor of the plaintiffs, giving them a lien upon one parcel of the plaintiffs' land for a portion of their claim and a personal judgment against the defendant for the remainder. A new trial was denied and the defendant has appealed. Negotiations had been had between the parties with reference to paving the street, and a proposal therefor had been presented to the appellant on behalf of the plaintiffs, and a formal contract for that purpose, bearing date April 10th, was afterward prepared by them and submitted to her. By the terms of this contract she was to pay twenty-four cents per square yard for paving, but in the proposal originally made to her the plaintiffs had offered to do the same at the rate of twenty cents per square yard. Before the execution of this contract, viz., April 14th, the plaintiffs visited the appellant at her house, and while there the terms of the agreement were discussed — Mr. Alpers, who appears to have acted in behalf of the appellant and as her advisor, being also present — and at that interview an instrument was prepared by the plaintiff Flinn, which proported to be a receipt from the appellant for the difference between twenty-four cents per square yard, as named in the contract, and twenty cents therefor, as had been agreed upon between them, and which *Page 484 also contained the following: "The balance ($1,305.59) thirteen hundred five and fifty-nine one-hundredths to be paid in installments of two hundred dollars per month, the first payment to become due four months from date of completion, and each subsequent payment to mature within thirty days next succeeding, all without interest." After this agreement had been signed by the plaintiffs the appellant expressed herself satisfied, and directed Mr. Alpers to sign the contract, which he thereupon did as follows: "E.M. Mowry, per C. Alpers." At this time only one property owner had signed the contract, and it being a private contract it was necessary that the owners of a majority of the frontage should sign it in order to obtain a permit for doing the work. The contract was therefore inchoate, and was left with Mr. Alpers, who afterward procured other property owners to sign it, and returned it to the plaintiffs. This evidence was sufficient to justify the court in finding that the defendant entered into the agreement with the plaintiffs set forth in the complaint. 1. The two instruments thus prepared and signed by the respective parties constituted the agreement between them in reference to the work to be done by the plaintiffs and the payment therefor by the defendant. They were parts of one transaction, related to the same matter, were signed at the same time, and are to be taken together, with the same effect as if the terms of both had been incorporated in one document and signed by both parties (Civ. Code, sec. 1642); and are to be construed, so far as practicable, as to give effect to every part of each instrument. (Civ. Code, sec. 1641) The provision in the instrument first prepared, wherein the appellant agreed to make the payment "upon the completion of the work," and the provision in the instrument of April 14th, wherein the plaintiffs agreed that the payment should be made in monthly installments of two hundred dollars each, are easily reconciled by considering that this change in the time of payment was agreed upon after the instrument of April 10th had been prepared and submitted to the appellant. The instrument of April 14th being signed by the plaintiffs is, under section 1654 of the Civil Code, to be interpreted most strongly against them. Its terms are equivalent to an express agreement that the plaintiffs should not be entitled *Page 485 to payment, and would not demand it except in monthly installments of two hundred dollars each. That this was the understanding of the plaintiffs is shown by their complaint as originally filed, and upon which they presented their case to the court, wherein, after alleging as one of the terms of the instrument of April 10th, that each of the owners of property fronting on the street agreed to pay for the work "upon the completion thereof," they allege in paragraph 8: "That at the time of entering into said agreement it was further modified as to said defendant E.M. Mowry, so that the amount due from her thereunder should be paid as follows: two hundred dollars, to be paid sixty days after completion of said contract, and two hundred dollars each month thereafter until the amount due thereunder should be fully paid"; and also by the fact that after they had completed the work they demanded from the appellant only the first installment of two hundred dollars. After both parties had rested the plaintiffs, by leave of the court, amended their complaint by striking out the above paragraph 8, but the defendant was not thereby precluded from availing herself of the modification therein alleged. Inasmuch as this modification was originally alleged in the complaint, there was no occasion for setting it up in her answer, and as it had been introduced in evidence, she had a right to avail herself of its provisions after the complaint was thus amended by amending her answer so that the allegations might conform to the proofs. The contention of the respondents that the failure of the appellant to pay this installment when it was demanded gave them a right to a recovery of the whole amount of the contract price cannot be maintained. No stipulation of this nature is contained in the agreement, and such right did not arise from a mere failure of the appellant to make the payment. Certain cases have been cited by them in support of this contention wherein it has been held that in contracts for the sale or manufacture of goods to be delivered in installments and paid for at each delivery a failure on the part of the buyer to make a payment may be under such circumstances as will justify the seller to consider the contract as repudiated and to release him from further *Page 486 performance. It is also the rule that where a continuing or executory contract has not been fully performed on either side, the repudiation of the contract by one party or his refusal of further performance will justify the other party in treating the contract as at an end, and give to him a right of action for damages for its breach. (See Hale v. Trout, 35 Cal. 228.) The rule in these cases has, however, no application to a contract for labor which has been fully performed on one side, and there remains only payment therefor. There can be no rescission or abandonment of a contract by a party who has fully performed his part of it. The obligation of the other party is measured by the terms of his agreement to the same extent as in any other contract. If this obligation is for the payment of money, and by his agreement such payment is to be made in installments, a failure to pay the first installment will no more give a right of action to recover them all than in the case of an ordinary promissory note which is made payable in periodical installments, and in which there is no provision for the maturity of the whole amount upon the failure to pay one of the installments. The agreement in the present case is specific and unambiguous that the defendant should make the payment for the work done by the plaintiffs in monthly installments of two hundred dollars each, and the finding of the court that the plaintiffs gave to the defendant "an option to pay the money due for said work in monthly installments of two hundred dollars" is not sustained by the evidence. Neither does the evidence sustain the further finding that "when said first installment became due defendant refused to pay any sum at all, and has ever since refused to pay anything for said work." The complaint merely alleges that she had not paid the sums due upon the contract. The only evidence tending to support any finding of nonpayment was that the plaintiffs had demanded payment of the first installment. The only objection that is shown to have been made by the defendant to the performance of her part of the contract was her claim that the plaintiffs had not done the work in accordance with the terms of their agreement. This is not the equivalent of a "refusal" to pay any sum at all. As only one of these installments had matured at the commencement of the present action, the court erred *Page 487 in deciding that the plaintiffs were entitled to judgment for the full amount of the contract price. 2. In addition to the claim upon the contract for paving the street, the complaint set forth a claim for constructing a bituminous rock sidewalk on the street in front of a portion of the appellant's land. Defendant filed her answer January 16, 1895, but did not deny the allegations in reference to this sidewalk. The case was tried upon these pleadings April 13, 1896, at which time the court found in favor of the plaintiffs, and that they were entitled to a lien for the amount due for laying this sidewalk, amounting to two hundred and forty-one dollars, and also to a personal judgment against the appellant for the amount due upon the contract for paving the street. Upon motion of the defendant for a new trial the court set aside that portion of its decision upon the contract for paving, ordered a new trial as to the issue thereon, and denied the motion for a new trial in all other respects. Another trial was had upon this issue in November, 1897, and the court again made its decision thereon in favor of the plaintiffs. After both parties had rested at this trial the plaintiffs, by leave of the court, amended their complaint by striking out the above-named paragraph 8, and the defendant afterward filed an amended answer in which she denied that she had made any contract for laying the sidewalk. The findings herein recite the proceedings had upon the former trial, including the former decision in reference to the claim for laying the sidewalk. The appellant in her statement on motion for a new trial specified as one of the grounds for setting aside the decision that this finding in reference to the sidewalk is not sustained by the evidence. It was not necessary that the evidence in reference to this claim should be incorporated in the statement. No issue thereon was presented by the answer on which the cause had been originally tried, and the decision made thereon became a part of the records of the court which it could adopt and include in its final decision. The order for a new trial excluded this portion of its decision from any further consideration, and by failing to appeal therefrom or otherwise to seek to have the order modified, it became *Page 488 final as to the defendant, and was not affected by her afterward filing an aswer in which the allegation was denied. The right of the court to limit its order for a new trial to a portion of the issues in the case is well established. (Duff v. Duff, 101 Cal. 1. ) 3. It is urged by the appellant that the court erred in excluding certain questions tending to show that the street was closed by the plaintiffs while performing their work thereon, and that in the performance of their contract they dug up and disturbed the street. These questions are claimed to have been proper for the purpose of showing that inasmuch as the plaintiffs did not obtain permission from the board of supervisors to do the work, the contract, therefore, was illegal and could not be the basis of a recovery. San Francisco v. Buckman, 111 Cal. 25, is relied upon in support of this contention. That case, however, was decided upon the provision in subdivision 10 of section 7 of the street improvement act, which declares that the owners of land may perform the "grading" upon the street in front of their property "after obtaining permission from the council to do so." The contract in the present case is for other work than grading, and this provision of the section has no application. A contract is not to be held unlawful unless it is either contrary to some express provision of the law or to its policy. (Civ. Code, sec.1667) This restriction on property owners from doing work upon the street in front of their property is limited to grading, and the provision in a subsequent portion of the section that "whenever any owner or owners of any lots or lands fronting on any street shall have heretofore done or shall hereafter do any work (except grading) on such street in front of any block at his or their expense," the work so done shall be excepted from any order for improving the street, implies the right of the owner to do such work and to contract therefor without obtaining such permission. Under their general supervision of the streets of the city the board of supervisors have adopted an ordinance forbidding anyone from digging up or disturbing a street without the permission of the superintendent of streets; but as permission from the superintendent was obtained in the present case, the questions which were excluded by the court were immaterial. *Page 489 Garoutte, J., and Van Dyke, J., concurred.