Cox v. McLaughlin

63 Cal. 196, 1883 Cal. LEXIS 408

• Court: California Supreme Court
• Decided: February 27, 1883
• Status: Published

Opinion

Ross, J.

For many reasons the judgment of the court below is erroneous. The action is one at law, on a special contract, the plaintiff alleging part performance of the contract on his part, and that of his predecessors in interest, and the preventing of the completion of it by the defendant. The case has been here repeatedly, the complaint on which the last trial was had being the seventh complaint filed in the action. Naturally enough, therefore, certain propositions have become the law of' the case. Among them that averment and proof of prevention is essential to a recovery by plaintiff, inasmuch as there is no pretense of the work contracted for having been completed or the contract rescinded. (44 Cal. 18; 47 Cal. 87; 54 Cal. 605; 52 Cal. 590.) It has also become the law of the case that neither the mere failure of the defendant to pay the instalments as they became due, nor the exercise by defendant of a right secured to him by the contract itself, constituted prevention. (52 and 54 Cal. supra.)

For the purpose of overcoming the first of these last-mentioned obstacles, the plaintiff was permitted on the last trial in the court below, against the defendant’s objections, to introduce testimony to the effect that both parties knew at the time of making the contract that the contractors relied, and were compelled by their pecuniary resources to rely, upon the payment by the defendant of the instalments as they became due; and the court below so found. In rightly holding such testimony erroneously admitted, Me. Justice Myeick, speaking for the court, when the case was last under consideration, said: “ Parol evidence of surrounding circumstances may be given to aid in the proper interpretation of an instrument; but where the parties have themselves used words which require no interpretation, where the words are understood, there is no occasion for aid to their proper interpretation or meaning. In this case the parties had, by their contract, clearly expressed two ideas or agreements: First, that the contractors were to perform certain work; second, that the defendant Avas to make payments therefor in instalments. The words as to these agreements are of very plain signification. This court had decided non-payment of instalments was not prevention; therefore, by the terms of the contract payment Avas not a condition precedent. In order to make payment a condition precedent a clause would have to be inserted, injected into the contract, Avhich the parties themselves did not see fit to place there. It is not in evidence that the parties agreed by paroi that the payments should be conditions precedent; but even if they had so agreed, the well-lmoAvn rule Avould apply, that their final conclusions Avere as they have expressed them in writing.” (10 Pac. C. L. J. 263.)

Of course this testimony Avas introduced, and the finding made thereon—the ninth—was made as bearing upon the question of prevention. Neither could have any other bearing. From the findings themselves it is sufficiently obvious that the prevention found by the court below was based upon the facts detailed in the ninth and tenth findings; and this becomes perfectly plain when the evidence is considered, from which it appears that the only attempt made to show prevention was to show the non-payment of the instalments by the defendant, the “surrounding circumstances” just alluded to, and suspension of the work by the defendant. In the tenth finding the court found that the defendant entirely suspended the work immediately after October 2, 1865. But this finding, as was justly said by Mr. Justice Mtrick in the opinion already referred to, “is not sustained by the evidence. The evidence is that McLaughlin directed the diminution of the laboring force to but a few men. This he had a right to do according to the express terms of the contract. (54 Cal. 605.)” It may he added that by the express terms of the contract between the parties, the defendant was authorized to entirely suspend the work, the contract prescribing the consequences of such suspension. Prevention implies ex vi termini, a breach of contract, and, of course, a party cannot commit a breach of contract by exercising a right secured to him by the contract. The finding that the defendant entirely suspended the work is, therefore, insufficient to constitute prevention. (54 Cal. 607.) Besides, the finding is, as already shown, unsupported by the evidence, and is in conflict with another (the fourth) finding made by the court, in which it is found that the plaintiff furnished material and performed labor and service of great value in and about the execution of the contract up to September 15, 1866. It is also in conflict with the averment of the complaint itself, in which it is expressly charged that Cox & Arnold, as the successors in interest of Cox, Meyers & Co., diligently prosecuted the work until September 15, 1866.

Moreover, there is in this case neither averment nor proof that the estimates of the engineer, on which alone, according to the terms of the contract between the parties as proved and found, the defendant was to pay, were made, nor is there any legal cause shown, or attempted to be shown, why such esti mates were not made. This question has recently been before us in two cases, one of which is Loup v. C. S. R. R. Co. 63 Cal. 97, and the other Holmes v. Richet, 56 Cal. 307, in which the conclusion was reached, to which we adhere, that in such cases averment and proof of the making of such estimates is essential to put the party making the agreement in default, unless legal cause is averred and proved why they were not made.

But further and beyond all this, the contract declared on by the plaintiff is essentially different from the contract set up by the defendant and proved and found by the court to have been made between the parties; and the respective rights and obligations of the parties under the one are essentially different from what they are under the other.

By the contract stated in the complaint, the obligation of Cox, Meyers & Co. was limited “to the extent of doing, and furnishing materials for, all the gradation, masonry, and bridging, and all other things necessary and proper to place said roadbed (of the railroad referred to) ready for the cross-ties and iron equipment, and no more.” By the contract proved and found their obligation went far beyond this. By that, the work to be done by them was to include all bridges, viaducts, embankments, excavations, road-crossings, culverts, drains, and all other things necessary, usual, and proper to place the part of the railroad described complete for the cross-ties and iron equipment to be placed thereon, and according to certain plans and specifications annexed to the contract and made part of it. The work to be done by them was to be done in the best and most thorough manner, and all that portion of the railroad undertaken to be built by them was to be equal to the best constructed railroad in the State, and was to be in full compliance with the contract then existing between McLaughlin and The Western Pacific Railroad Company, and in full compliance with the requirements of the board of directors of that company. It is manifest that performance of the obligations imposed on Cox, Meyers & Co. by the contract alleged in the complaint would by no means be a compliance with the obligations imposed on them by the contract proved and found.

Furthermore, the defendants obligations, as well as his rights, are essentially different under the two. The contract proved and found is not alleged in the complaint to have been made, is not alleged to have been performed in whole or in part by the jilaintiff, nor to have been broken by the defendant. The alleged contract, for the breach of which the action was brought, was not proved.

Judgment and order reversed and cause remanded for a new trial.

Morrison, C. J., Myrick, J., McKinstry, J., and Thornton, J., concurred.

Petition for a rehearing denied.