G & P Electric Co. v. Dumont Construction Co.

194 Cal. App. 2d 868, 15 Cal. Rptr. 757, 1961 Cal. App. LEXIS 1890
CourtCalifornia Court of Appeal
DecidedAugust 18, 1961
DocketCiv. 24973
StatusPublished
Cited by9 cases

This text of 194 Cal. App. 2d 868 (G & P Electric Co. v. Dumont Construction Co.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G & P Electric Co. v. Dumont Construction Co., 194 Cal. App. 2d 868, 15 Cal. Rptr. 757, 1961 Cal. App. LEXIS 1890 (Cal. Ct. App. 1961).

Opinion

FOURT, J.

This appeal is on a settled statement in accordance with rule 7 of the Rules on Appeal. For convenience, the parties will be designated herein as follows: G & P Electric Company, Inc., as “G & P”; Dumont Construction Company, et al., (a copartnership consisting of James P. Howard, Jr., and Pete Dumont), as “Dumont”; and Harry L. Butzbach and Roberta S. Butzbaeh as “Butzbaehs.”

A résumé of some of the facts is as follows:

The Butzbaehs, by written contract, engaged Dumont, a licensed general building contractor, to build a home for them. The contract called for the house to be constructed in accordance with certain plans and written specifications.

G & P Partnership, plaintiff’s predecessor, was engaged by Dumont under a written subcontract to do the electrical work for the contract price of $2,262.

During the course of the work the Butzbaehs, in four separate instances, signed work orders directing G & P to perform additional work (hereinafter referred to as “extras”), which was not included in G & P’s subcontract with Dumont. The first of the four work orders was also signed by Dumont. In each instance the agreed cost of the extras was set forth in the work order.

G & P was not fully paid for its work. In G & P’s first amended complaint it sought in the first cause of action a personal judgment against Dumont and also the imposition of a mechanic’s lien upon Butzbaehs’ property to satisfy the balance it claimed to be due for labor and materials contributed to the over-all improvements, the amount of which was $1,291.55. It was alleged in the second cause of action that on or about August 6, 1956, G & P entered into a written contract with Dumont and the Butzbaehs wherein G & P “agreed to furnish to said defendants labor and materials for the installation of electrical wiring, circuits, and fixtures in the home of defendants Harry L. Butzbach and Roberta S. Butzbach, which was then being constructed by defendant Dumont Construction Co.,” for which the defendants agreed to pay the sum of $256.55; that G & P performed said agree *873 ment; and ■ that only the sum of $200 has been paid on the agreed price, leaving a balance due G & P of $56.55. The third cause of action alleged that the Butzbachs and G & P also entered into three further written agreements dated October 4th, 15th and 17, 1956, respectively, whereunder G & P installed additional wiring for which the agreed price was $782.60. It was further alleged and not denied, that none of this amount had been paid to G & P. The second and third causes of action were based upon the four work orders for extras.

By their answer the Butzbachs denied any indebtedness to G & P and affirmatively alleged that G & P and Dumont entered into certain agreements, both oral and written, to defraud the Butzbachs by installing certain electrical work contrary to the specifications and that any claim G & P may have against them is void as contrary to the public policy of the state as set forth in section 7109 of the Business and Professions Code. By an amendment to their answer the Butzbaehs set up a counterclaim in which they alleged that between July 23, 1956, and September 13, 1957, G & P agreed with Dumont and the Butzbachs to do the electrical work in their home; that the work was agreed to be done in accordance with the plans and specifications; that the work was not done in accordance with the plans and specifications in that the materials used were different from and inferior to those called for in the plans and specifications and in that some items of work were omitted; and that by reason of said deviations and said omissions the Butzbachs had been damaged in the amount of $5,800.

The Butzbachs alleged in their cross-complaint that G & P’s predecessor and Dumont “entered into agreements, both written and oral ... to install and have installed said electrical work contrary to the said plans and specifications, each well knowing that this was without the consent or knowledge of these cross-complainants”; that pursuant to these agreements certain electrical work was installed contrary to the plans and specifications; “this departure . . . being without the consent or knowledge of these cross-complainants, except that cross-complainants did during the course of construction consent to have the residence wired without a touch-plate or low voltage system as required by the specifications. Said consent of these cross-complainants being obtained by the refusal of said Robert Powell and Edward Gill (G & P) to comply with *874 said specifications unless these cross-complainants paid a further sum to them for so doing. ” It is further alleged that “before, during or after the construction” G & P Electric Company, Inc., was incorporated and became a party to the conspiracy as soon as it came into existence. The cross-complaint concludes with an allegation of damages by reason of the conspiracy in the amount of $6,000.

The answers of G & P and Dumont to the Butzbachs’ cross-complaint deny any conspiracy and any departure from plans and specifications and also that the Butzbachs sustained any damage. Dumont’s answer further sets up that on September 23, 1957, the Butzbachs and Dumont each executed and delivered to the other a mutual release wherein the Butzbachs accepted the dwelling “as is” and agreed to “make no further claims of any nature whatsoever pursuant to said original contract or any modification, amendment or change thereof, whether by written or oral agreement or otherwise.”

In his opening statement to the trial court, counsel for G & P indicated that G & P could not make out a case for foreclosure or a mechanic’s lien because the lien was not timely filed but that he expected to prove the reasonable value of material and labor furnished. Butzbachs ’ motion for nonsuit was denied. After G & P rested, its motion to amend the complaint to allege an express contract was granted. Another motion for nonsuit was denied.

Judgment was rendered in part as follows:

“. . . plaintiff (i.e., G & P) have and recover from defendants Dumont Construction Co., Pete Dumont, James Howard, Harry L. Butzbach and Roberta S. Butzbach, jointly and severally, the sum of $56.55; that plaintiff have and recover from defendants Dumont Construction Co., Pete Dumont and James Howard the further sum of $452.40; and that plaintiff have and recover from defendants Harry L. Butzbach and Roberta S. Butzbach the further sum of $872.02.
“It Is Further Adjudged that defendants Harry L. Butzbach and Roberta S. Butzbach take nothing by reason of their counterclaim; that cross-complainants Harry L. Butzbach and Roberta S. Butzbach take nothing by reason of their cross-complaint; and that plaintiff have its costs herein incurred amounting to $52.60.”

The Butzbachs filed their notice of appeal “from the judgment ... in favor of the plaintiff and cross-defendants in said action, and against said defendants and cross-complainants ; and from the whole thereof. ’ ’

*875

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Bluebook (online)
194 Cal. App. 2d 868, 15 Cal. Rptr. 757, 1961 Cal. App. LEXIS 1890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/g-p-electric-co-v-dumont-construction-co-calctapp-1961.