Oppenheim v. Long Island R. Co.

This is a motion pursuant to rule 103 of the Rules of Civil Practice to strike the ‘First Separate and Complete Defense’ and the ‘Second Separate and Complete Defense’ in defendant’s answer on the ground that the matter contained therein is frivolous, irrelevant, redundant, unnecessary, impertinent, or scandalous and may tend to prejudice, embarrass or delay the fair trial of the action.

In essence the defenses are that at the time of the injury the infant plaintiff was not connected with or employed upon the railroad and he was walking upon or along the defendant’s railroad tracks at a place other than where they are laid across or along streets and highways, and that, therefore, the plaintiff violated sections of the Railroad Law of the State of New York and of the Penal Law of the State of New York.

Motions of this nature are addressed to the sound discretion of the court. The allegations of the First, Separate and Complete Defense contained in the answer have a bearing on the subject matter of the action and are a proper subject of proof. The presence of the matters alleged therein involve no prejudice and the allegations are not irrelevant to the cause of action pleaded.

However, the allegations contained in the Second, Separate and Complete Defense contained in the answer charge the plaintiff, an infant under the age of fourteen years, with a crime. The offense charged, when committed by an infant under sixteen years of age, is not a crime. With respect to this defense the court is of the opinion that it should be struck from the answer.

Accordingly, the motion is denied with respect to the First Defense and granted with respect to the Second Defense.

Settle order.

Oppenheim v. Long Island R. Co., 197 N.Y.S.2d 816, 21 Misc.2d 938 (N.Y.Sup. 1960).

People v. Roberts

Rice v. Heggy

Nash v. Board of Ed. of City of New York

Petitioners move pursuant to Article 78 of the Civil Practice Act for the immediate reinstatement in their positions as school teachers in the New York City Public School System from which they were suspended without pay in September 1955 and for the dismissal of certain charges now pending against them.

Petitioners are honorably discharged members of the Armed Forces. In the course of an investigation pursuant to the Feinberg Law, Education Law, § 3022, the petitioners were questioned with respect to their membership in the Communist Party. The admitted that they had once been members of the party but alleged that their membership terminated prior to 1950. They were asked to name other employees of the Board of Education who had also been members of the Communist Party but they declined to answer on the ground of conscientious principles. On September 12 and 14, 1955 the Superintendent of the Board of Education suspended them from their employment and on September 23, 1955 served charges upon them. They were charged with (1) continuing membership in the Communist Party within the intendment of the Feinberg Law; (2) with impeding a lawful investigation in refusing to identify associates who were members of the Communist Party; and (3) with making of false statement under oath in their application for teaching licenses. The negative response to the question ‘Are you now or have you ever been affiliated with any organization endorsing the Communist, Fascist or Nazi movements?’ was alleged to be false. On September 29, 1955, at a regular meeting of the Board of Education, the suspension of the petitioners was continued and a trial examiner was appointed. The petitioners and the legal representatives of the Superintendent appeared before the trial examiner on November 2, 1955, but the hearing was adjourned sine die until after the termination of proceedings which petitioners had commenced against the respondents before the Commissioner of Education challenging the respondent’s right to discipline them for refusing to identify former Communist Party associates. On August 7, 1956 the Commissioner of Education issued a decision enjoining the respondent from disciplining the petitioners for refusing to identify former Communist Party associates in the school system. This decision was affirmed by the Supreme Court, Albany County on May 20, 1957 Board of Education of City of N. Y. v. Allen, by the Appellate Division on April 28, 1958, and by the Court of Appeals on May 28, 1959. On June 25, 1959 a committee was appointed by an Executive Session of the Board of Education to review the charges and specifications against the petitioners. On December 17, 1959 the Board of Education adopted a resolution that the disciplinary proceedings against the petitioners be continued on the charge of making false statements under oath. Trial of these charges has been arranged for January 26, 1960.

Petitioners assert that they could not be suspended for a period longer than one month under the Administrative Code of the City of New York. Petitioners, being employees of the Board of Education, come within the provisions of section 2566 of the Education Law with respect to suspensions. Section 2566, which applies specifically to an employee of the Board of Education, is controlling. Certainly, the petitioners were dilatory in bringing the present motion.

The suspension imposed by the Superintendent of the Board of Education did not exceed the period provided for in subdivision 5, section 2566 of the Education Law since it did not extend further than the next regular meeting of the Board of Education. The continuance of the suspension by the Board thereafter is not limited by time. Wolf v. Board of Education of the City of New York, supra. The court is of the opinion that the conduct of the Board of Education with reference to the length and duration of the suspension was neither arbitrary nor capricious, bearing in mind that the Court of Appeals decision was not rendered until May 28, 1959.

The petition for an order is therefore denied.

Settle order on notice.

Nash v. Board of Ed. of City of New York, 198 N.Y.S.2d 180, 26 Misc.2d 46 (N.Y.Sup. 1960).

C. F. Bolster Co. v. J. C. Boespflug Const. Co.

National-Ben Franklin Fire Ins. Co. v. Woolcott

People v. Roberts

This is a motion by defendant to obtain a copy of the transcript of testimony taken at his trial in 1955 free of charge.

The court heretofore denied the informal application made by letter upon the basis of People v. Brown. Defendant has renewed his application upon a claim of poverty, citing Griffin v. People of State of Illinois.

There is no obligation to furnish defendant with a free transcript of testimony even under the doctrine of Griffin v. Illinois. As the Supreme Court said Eskridge v. Washington State Board of Parole. ‘We do not hold that a State must furnish a transcript in every case involving an indigent defendant.’

In the Griffin case, the defendant Griffin and one Crenshaw were convicted of armed robbery. Immediately and apparently timely, they requested a certified copy of the entire record including the testimony free of charge on the ground that this was needed to prosecute an appeal. From the denial of this request, they appealed to the Supreme Court.

It is clear that under Illinois law, defendants could not get a full direct appellate review of the alleged errors unless they (the defendants) furnished the appellate court with a bill of exceptions or report of proceedings at the trial certified by the trial judgment. In this situation, the Supreme Court held that a State must furnish to destitute defendants the same adequate review as that furnished to defendants who have money enough to buy transcripts.

In People v. Pride, the Court of Appeals held that a requirement of the Buffalo City Court Act which prevented a return on appeal from being filed because defendant was financially unable to purchase a transcript of the testimony violated defendant’s constitutional right as enunciated in the Griffin case.

However, none of these cases is applicable to this motion. The defendant was convicted on June 13, 1955. He filed a notice of appeal to the Appellate Division on August 13, 1956 fourteen months after his conviction. He then moved before that court for an order granting leave to appeal on the original record and handwritten briefs, which was denied on January 8, 1957 ‘on the ground that no appeal is pending’.

If an appeal had been pending at that time, a copy of the stenographic minutes of the trial would have been filed by the clerk of this court in his office and would have been made a part of the judgment roll and would have been available both to the defendant and the appellate court. It is clear that the situations in Illinois and Washington criticized by the United States Supreme Court in the Griffin and Eskridge cases is not present in New York State. Here there has been no denial of any constitutional right of an adequate appeal. Defendant is limited to any remedy he may have under coram nobis.

This Court is without power to grant this application. Denied.

People v. Roberts, 194 N.Y.S.2d 816, 20 Misc.2d 769 (N.Y. Co. Ct. 1960).

Agnew v. Cronin

C. F. Bolster Co. v. J. C. Boespflug Const. Co.

Gallenstein Testified to Competence as Salesman

The witness Gallenstein, now a Railway Mail Clerk, a fellow worker with decedent up to the time of his death, seeing him every day, testified testator was the best salesman the Company ever had, and he had declared to him on three or four occasions that his first wife and boys had taken his fruit business away from him, robbed his bank box, and if he made a will he didn’t want them to receive any part of his estate.

One of the plaintiffs saw his father about ten days before his death and testified he was sober, well dressed, apparently in good health, and was making a business call on the same customer as the son at the time.

There is much conflicting testimony in the record, from which different inferences might be drawn, as to whether or not the second wife generally had an influence over testator, frustrating a desire to return to his former family. Also, the record reveals many inconsistencies in action on his part from his quoted statements concerning his feelings for both his original family and the second wife, and made while both drunk and sober. It, therefore, seems a jury question is presented.

From a careful consideration of the whole record, however, we conclude that the evidence is insufficient to justify a finding of lack of testamentary capacity or undue influence and that the verdict is therefore, manifestly against the weight of the evidence, and the judgment is reversed.

Krouzian v. Hagopian

Oppenheimer v. Tamblyn

Los Angeles Seeks Injunction against Superior Court in Baseball Litigation

By this proceeding in prohibition the city of Los Angeles seeks to restrain the superior court from enforcing a preliminary injunction or taking further action in a taxpayer’s suit to enjoin certification of the result of a referendum election.

The city council adopted an ordinance authorizing execution of a contract between the city and the Brooklyn National League Baseball Club, Inc., which provided, among other things, for the exchange of certain properties and for the ball club to erect a stadium and procure the transfer from Brooklyn to Los Angeles of the franchise of the major league baseball club known as the ‘Dodgers.’ Following the filing of a referendary petition, the city council voted to place the ordinance on the ballot for approval or disapproval by the voters, and at the ensuing election a majority of the voters favored adoption of the ordinance. Thereafter respondent superior court granted a temporary restraining order and a preliminary injunction restraining the city council from declaring the result of the election.

Two prior actions were filed by some of the real parties in interest. One was brought to secure a declaration that the ordinance and contract were invalid and to enjoin any proceedings thereunder; in the other similar relief was sought together with mandamus and prohibition. Judgments were rendered enjoining the execution of the contract, and appeals therefrom are now pending in this court. In a third action filed by Kirshbaum against the city, a preliminary injunction was issued enjoining certification of the result of the referendum election. This proceeding was then brought by the city to prohibit the superior court from enforcing the preliminary injunction or from taking further steps in the third action.

The writ of prohibition is an appropriate remedy to arrest the proceedings of a court when there is not a plain, speedy, and adequate remedy in the ordinary course of the law and when the proceedings of the court are without or in excess of its jurisdiction. The absence of another adequate remedy was determined by this court when we granted an alternative writ. To permit the issuance of prohibition it is not necessary that there be a lack of jurisdiction over the subject matter or parties in the fundamental sense but only that there be a want or excess of the power of the court as defined by statute or by rules developed and followed under the doctrine of stare decisis.

People v. Contreras

Oppenheimer v. Tamblyn

Cahan Rules for Dismissing Case Due to Unlawfully Obtained Evidence

Respondent has filed a motion to augment the record herein by adding thereto the minutes of the Municipal Court of Los Angeles Judicial District in Case No. 143900 entitled People of the State of California v. Henry Victor Prewitt, and to further add to the record on appeal a certified copy of the complaint filed in the aforesaid court on March 3, 1958, wherein respondent was accused of violating Section 337a of the Penal Code. The motion is accompanied by an affidavit of Russell E. Parsons, Esq., one of counsel for respondent, wherein it is set forth that the defendant named in the municipal court action is respondent herein, and that the charge contained in the indictment in the instant case is the identical charge contained in the aforesaid complaint filed in the municipal court. That after a preliminary examination, at which time substantially the same evidence was presented to the judge presiding at said preliminary examination, said case was dismissed by reason of the fact that the evidence had been unlawfully obtained, in violation of the rules laid down in the case of People v. Cahan.

We are satisfied that respondent’s contention that the doctrine of res judicata is applicable to the instant proceeding cannot be sustained and that the records of the municipal court are not germane to the issues presented on this appeal. While it is true, as urged by respondent, that the doctrine has been applied to criminal cases in this state, it was always under different circumstances. In effect, respondent argues that after an accused is discharged at the preliminary examination, unless new and different evidence is offered before a grand jury or another committing magistrate, the decision of the magistrate becomes, as it were, the law of the case and is res judicata. The same contention was advanced in the case of People v. Joseph, and rejected. The factual background present in the case just cited is strikingly similar to that in the case at bar and we are persuaded that the holding in that case is determinative of respondent’s contention herein. In the Joseph case, supra, following the dismissal of two complaints filed against the accused, the same evidence was presented to the grand jury and an indictment was returned. In that case this court said: ‘We are satisfied that the doctrine of res judicata applies to prevent the relitigation of issues determined by a final judgment in a prior action between the same parties. In the case now engaging our attention, however, appellant’s argument for application of the doctrine of res judicata fails for two reasons. First, the orders of dismissal entered by the municipal court judges were not appealable. Secondly, in an unbroken line of decisions in this state it has been held that the results of proceedings prior to trial in criminal actions are not res judicata.’

Respondent relies heavily upon the case of Coffey v. United States, which was a case involving a judgment of acquittal in a criminal prosecution for a violation of Internal Revenue laws, and the court held it was conclusive in favor of the defendant as claimant of the property involved in a subsequent suit in rem, when, as against him, the existence of the same act or fact involved in a criminal prosecution is in issue as a cause for the forfeiture of such property. That case, however, in our opinion, does not aid respondent, because therein it was held that, ‘The judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, in bar, or as evidence, conclusive, between the same parties, upon the same matter directly in question in another court; and the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. In the present case the court is the same court, and had jurisdiction, and the judgment was directly on the point now involved, and between the same parties.’ In the case here under consideration we do not have a prior judgment by a court of concurrent jurisdiction. As was said in People v. Brite: ‘A justice of the peace, when acting as a court, is given the power of trying causes and rendering judgments of imprisonment upon conviction, but, when acting as a magistrate in the preliminary examination of a person accused by deposition of a public offense, he has no such power. The full limit of his power is, after examination, to hold the accused to answer at trial, unless from the examination it appears that no offense has been committed or there is not sufficient cause to believe the defendant guilty of a public offense, in which event the magistrate must order the accused discharged.’

An examination of other cases cited by respondent reveals nothing in conflict with what we have herein stated.

The motion to augment the record is denied. The order from which this appeal was taken is reversed.

Krouzian v. Hagopian

National-Ben Franklin Fire Ins. Co. v. Woolcott

People v. Contreras

A jury found defendant guilty of selling heroin in violation of Health and Safety Code section 11500. He appeals from the judgment of conviction, claiming that the trial court erred in failing to give an instruction on circumstantial evidence and an instruction on reasonable doubt.

The facts, which are not in dispute, are as follows: On Sunday, July 21, 1957, Officers Juarez and Lopez of the San Jose Police Department, were instructed to go to Post Street and purchase narcotics from anyone who would see to them. They were given $20 in marked bills to use. The officers saw the defendant in front of Rusty’s Cafe on Post Street. Defendant asked Officer Juarez if he was going ‘to connect’. Juarez answered that he wanted to buy heroin. Defendant said a man by the name of Tommy would be around later. Juarez gave the defendant $10. Later the defendant returned with a small rubber balloon. Defendant handed the balloon and a $5 bill to Officer Juarez. Upon examination a gelatin capsule inside the balloon was found to contain one gram of heroin.

The first question is whether the trial court erred in failing to give the following instruction proffered by the defendant.

If the evidence of this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the Defendant and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the Defendant’s innocence, and reject that which points to his guilt.

Defendant, citing People v. Yrigoyen; People v. Zerillo; and People v. Bender, relies on the well-established rule that when circumstantial evidence is received to prove a fact necessary to convict, the trial court should, on its own motion, give an instruction concerning circumstantial evidence. The record discloses that the evidence produced by the People was all direct evidence, not circumstantial. Hence, the failure to give the instruction was not error.

Also, the fact that instructions on circumstantial evidence where not given is prejudicial only when it is improbable that the jury would have reached the same result had the instruction been given. In all the cases cited by the defendant, there was conflicting evidence or some facts or circumstances inconsistent with guilt. The same is not true of the instant case. The circumstances relied upon by the prosecution point to defendant as a person who knew what he was selling and willfully did so. We can only conclude that under the circumstances of this case the failure to give the requested instruction on circumstantial evidence did not result in a verdict different from that which would have been rendered had the instruction been given.

Defendant next complains of the following instruction:

‘If you find there is any single fact proved to your satisfaction by a preponderance of the evidence, which said fact is inconsistent with the defendant’s guilt, that, in and of itself in your minds is sufficient to raise a reasonable doubt of said defendant’s guilt, then the defendant would be entitled to the benefit of such reasonable doubt and it will be your duty to acquit him.’

Defendant argues that the giving of this instruction was reversible error, as the instruction violated the rule that the accused is not required to prove his innocence. The contention is without merit. The instructions as a whole well state that the burden of proving defendant’s guilt is on the prosecution. Furthermore, the record reveals that the instruction complained of was given at defendant’s own request. Even if the court had committed error in giving this instruction, defendant cannot complain on appeal of an instruction given at his own request.

No prejudicial error appearing in the record before us, the judgment must be affirmed.

Judgment affirmed.

People v. Contreras, 167 Cal. App.2d 288, 334 P.2d 208 (Cal. App. 1 Dist. 1959).

C. F. Bolster Co. v. J. C. Boespflug Const. Co.

McCarty v. Macy & Co.

Krouzian v. Hagopian

After a trial on April 26, 1957, the trial judge on May 8 signed findings of fact and conclusions of law, and on May 9 signed and had entered a judgment in favor of plaintiff for $200 (based on plaintiff’s second cause of action), in favor of defendant on plaintiff’s first cause of action, and granting defendant a nonsuit on plaintiff’s third cause of action. Thereafter plaintiff moved to set aside said judgment and to substitute a different judgment therefore on the ground that the findings do not support the judgment, as the findings find in effect that all of the allegations of plaintiff’s first and second causes of action are true, yet the conclusions of law and judgment state that defendant is entitled to judgment against plaintiff on the first cause of action. 1 On June 5 2 a minute order signed by the trial judge was entered which stated: ‘Order of the Court in the above-entitled matter. It appearing to the Court that the Findings of Fact and Conclusions of Law heretofore signed on May 8, 1957, and the Judgment herein signed May 9, 1957, were signed and entered herein by said Court through the said Court’s own inadvertence, improvidence and mistake and that the said Findings of Fact and Conclusions of Law and said Judgment do not conform to or represent the views of the Court heretofore expressed and the intention of the said Court, now on said Court’s own motion the signing and entry of said Findings of Fact and Conclusions of Law and said Judgment are ordered vacated and set aside and counsel for the defendant is ordered and directed to prepare and submit Findings of Fact and Conclusions of Law and a form of Judgment consistent with the Court’s views heretofore expressed. It is further ordered that the motion to vacate judgment and enter a different judgment filed by plaintiff herein be and the same is hereby denied.’

Inadvertence and Mistake.

It is obvious by comparing the findings relating to the first cause of action with the conclusions of law and judgment that a mistake was made in either the findings or the conclusions of law and judgment as to that cause of action. The findings found the facts to be practically as alleged in that cause of action. 3 Thus either the findings on that first cause of action were correct and the conclusions and judgment were wrong, or vice versa. The trial judge said in the minute order that the findings of fact and conclusions of law and judgment were not those expressed by her. It clearly appears that they could not have been as no judge would intentionally sign such contradictory documents. It is well settled that a court has the power, regardless of the lapse of time, to correct judgments and orders on its own motion so as to make them conform to the judicial decision actually made. This power exists independently of statute. Or as stated in Minardi v. Collopy: ‘It is primarily for the trial judge to determine whether a decision misstated his real intention and whether the judgment as signed was an inadvertence. The trial court, independently of statute, has the power to correct its mistakes and amend its orders which are not the result of an exercise of judicial discretion.’ See Bastajian v. Brown, holding that a court can vacate and correct its judgment both under section 473, Code of Civil Procedure, and its inherent power, whenever the judgment has been made inadvertently or by mistake. See Morgan v. State Board of Equalization, holding that the trial court may correct a clerical error without notice and on ex parte application. The court, of course, has no power to correct a judicial mistake. But such is not the case here. As stated before, a mere comparison of the findings with the conclusions and judgment show the inadvertence and mistake. It well corroborates the judge’s statement in the minute order. There is nothing in the record to the contrary. For that reason we deem it unnecessary to determine whether a trial court’s statement of inadvertence and mistake, unsupported by anything else in the record, is sufficient to prove that a judgment as signed was not the intended judgment. 4

As the findings, conclusions of law and judgment as to the first cause of action were inadvertently signed and when corrected as originally intended will be consistent rather than contradictory, as now, the court properly denied plaintiff’s motion to enter a judgment which would be inconsistent with the findings as intended.

The order is affirmed.

PETERS, P. J., and FRED B. WOOD, J., concur.

—————

1 The motion as made was limited to correcting the findings and judgment as to the first cause of action only for the reason that the findings found that all of the allegations of the first and second causes of action in plaintiff’s complaint were true and yet the judgment was that defendant have judgment on the first cause of action.

2 The motion was noticed for May 28. The record fails to show what, if anything, happened that day. Plaintiff contends that the motion was granted. There is no evidence or record to that effect.

3 The difference between the two causes of action is that the first one sought rent for the period when plaintiff alleged that his property was occupied by the decedent, and the second sought rent for the period of alleged occupancy by the defendant administrator.

4 In another case this day decided, that very question was in issue and decided.

Krouzian v. Hagopian, 167 Cal. App.2d 251, 334 P.2d 285 (Cal. App. 1 Dist. 1959).

Rice v. Heggy

C. F. Bolster Co. v. J. C. Boespflug Const. Co.

C. F. Bolster Co. v. J. C. Boespflug Const. Co.

In the court below plaintiff, C. F. Bolster Co., a contractor, recovered judgment against defendant, J. C. Boespflug Construction Company, the general contractor, and The Travelers Indemnity Company, its surety, for extra work allegedly done by plaintiff at defendant contractor’s direction in the construction of certain school buildings for the Los Angeles City High School District. By the terms of a subcontract, dated October 12, 1954, plaintiff undertook to do the interior and exterior plastering work on the project in conformity with and subject to the plans and specifications for the agreed sum of $201,914.00.

In substance, the trial court found that at defendant’s instance and request plaintiff had applied an extra leveling coat of cement plaster to the exterior concrete surfaces of said buildings and that the reasonable value of the labor and materials utilized therein was $8135.96. The effect of the findings was to sustain plaintiff’s contention that the extra work was necessitated by defendant’s failure properly to prepare the concrete surfaces so that ‘irregularities’ therein would not show through the two coats of plaster called for by the specifications.

The subcontract incorporates by reference the plans and specifications on the project which were prepared by the architect, Mr. A. C. Zimmerman. Under the terms of the specifications so incorporated, all materials furnished and work done were subject to the architect’s inspection and approval for the owner. The architect was declared to be the interpreter of the specifications and the judge of the quality of materials, workmanship and performance.

An entire section of the specifications, section ‘K’, deals with the plastering work which was plaintiff’s responsibility under the subcontract. This section required plaintiff to apply two coats of plaster: first a ‘brush coat’ which was essentially a coat of paint consisting of colored stucco without sand; and, second, a ‘dash coat’, which was described in the testimony as a soupy mortar mix sometimes applied with a ‘dash brush.’ The specified thickness of the dash coat was 3/32 of an inch and it was provided that ‘the dashing shall be done with a plasterer’s dash brush using a strong whipping motion to secure a good bond.’ It was provided in paragraph 56 of section ‘K’ that ‘at least one week prior to starting the work, the contractor shall make up samples of stucco work under the direction of the architect. The finished work shall match the approved samples in color and texture.’

The specifications (section K) require that ‘Concrete surfaces to be plastered shall be finished, cleaned and sandblasted as specified in the section on Portland Cement Concrete. Before starting plastering, the subcontractor for the work of this section shall inspect all surfaces to be plastered and report to the contractor and inspector any surfaces to be plastered which have not been prepared for plastering as specified.’

On February 11, 1955, plaintiff wrote defendant a letter reading as follows: ‘On the above project, we would like permission to machine apply the exterior stucco coat. It has been our experience, and the experience of the industry as a whole, that machine application produces a finished surface that is much superior to hand application. There will be no change in price.’ It will be noted that the foregoing requested a change from the method of application required by the above quoted section of the specifications which provided for application of the dash coat ‘with a plasterer’s brush.’ Defendant transmitted the above letter to the architect on February 15, 1955, who wrote defendant as follows:

Where stucco dash coat is specified, the Architect will approve the application of stucco by machine, provided it is an air spray machine and the exterior woodwork is properly masked. A demonstration of the method of masking and application will have to be approved by the Inspector and the Architect before starting the stucco work. If the methods are approved, the Architect will process a change order to the above-referenced paragraph. Par. 56, Contract Specifications, requires samples of stucco work. If possible, these samples should be made at the time the machine application is demonstrated. As to the texture of the dash coat, the Architect has in mind a texture produced by a slight troweling of the dash coat. When you get ready to make the samples, the Architect will give you the address of a building to look at.

Defendant promptly transmitted the architect’s letter to plaintiff, and subsequently notified plaintiff of the building to which the architect referred. The pre-trial stipulation recites that the specifications were modified to permit plaintiff to apply the stucco by means of a gun instead of by hand.

The section of the specifications on Portland Cement Concrete (to which the above quoted plastering specifications referred), deals with the requirements of the concrete work for which defendant was responsible in this case. The provisions of this section required defendant to grind down or otherwise remove fins, pour lines, bulges, stains and irregularities of surfaces, and to sandblast the concrete surfaces which were to be plastered. It was further provided that ‘in addition, all exterior surfaces to be plastered with a dash not shall have all irregularities removed which will show through the dash coat of plaster.’

There is substantial evidence in the record, both testimonial and photographic, tending to prove the unsatisfactory conditions of the concrete surfaces of the exterior walls which defendant constructed and on which plaintiff was obligated to apply plaster. There is testimony as to the existence of excessive numbers of ridges, protrusions, indentations, and other irregularities on the surface of the concrete which had to be removed by grinding or sandblasting operations conducted by defendant. And there is evidence that as a result of the sandblasting operations, there was considerable pitting and scoring of the concrete surfaces on which plaintiff was required to work.

Plaintiff offered expert testimony to prove that two coats of plaster, consisting of a brushcoat and a 3/32-inch dash coat, as called for by the specifications, would not cover the irregularities and imperfections in the concrete surfaces as prepared by defendant. There is testimony by an ex-employee of defendant which gives substantial support to plaintiff’s contention that defendant was having serious difficulty in bringing the concrete surfaces up to specifications. This witness testified that at the time the concrete work was done he was defendant’s construction superintendent on the job; that when the forms were removed ‘the concrete was in fair condition, except, when we started sandblasting, it opened a lot of voids, and that required a lot of filling’; that in his opinion a 3/32-inch dash coat of stucco would not have been sufficient to cover the imperfections, and that his estimate of the cost of putting the concrete in shape so that the imperfections would be satisfactorily covered by the specified dash coat ‘would run around ten to twelve cents a square foot.’ The witness testified to conversations with plaintiff’s representatives in which various methods of preparing the concrete surfaces for the application of plaster were discussed.

In June, 1956, plaintiff’s employees prepared a number of samples of external stuccoing on a wall of one of the buildings which defendant had constructed. Among these samples were examples of both hand and machine application, including one consisting of a brush coat and a dash coat applied by hand as called for in the specifications. When these several samples were submitted to the architect for his approval, he rejected all except one which had been prepared by machine application with three coats of plaster. This sample had been prepared by the application of a machine-applied base or ‘float’ coat of plaster considerably thicker than the dash coat called for in the specifications, followed by two machine applied dash coats.

In late July or early August defendant requested a bid from plaintiff for preparing the external concrete surfaces for the admitted purpose of avoiding any dispute as to responsibility for preparing the concrete surfaces. On August 18, 1955, plaintiff replied by letter with an offer to apply a ‘leveling coat’ of plaster to the external concrete surfaces at an additional cost of $11,368. Defendant did not immediately respond to this offer. However, on September 28, 1955, defendant wrote to plaintiff as follows:

‘With reference to your letter of August 18, 1955, regarding application of a leveling coat to exterior concrete surfaces, this is to advise that no such change was requested or authorized by this office.

‘Subsequent to receipt of your letter the architect inspected the concrete surfaces of the buildings to receive dash coat and has approved the surfaces as fully complying with the requirements for preparation of concrete surfaces outlined in Section E of the contract specifications.

‘The architect, at the same time, selected and approved one of the samples that you applied over said surfaces. This application of stucco dash coat will be applied by you in strict accordance with the specifications, particularly, Section K, and must meet with the architect’s approval. Earlier in the year the architect gave conditional approval of a machine application for the dash coat, provided that such application first be approved by him. If it is impossible for you to secure a satisfactory and approved job, using mechanical methods, it may be necessary to revert to hand methods outlined in the specifications, which is your responsibility under the terms of our subcontract.’

Plaintiff replied the following day as follows: ‘In accordance with our subcontract for plastering on the above mentioned construction, we are now, and have been for some time, ready to proceed with the application of dash coat of plaster on exterior concrete walls but have been unable to do so because surfaces have not been prepared for plastering. Pursuant to our contract and the specifications, we do hereby report to you that the concrete surfaces to be plastered have not been prepared for plastering as specified in the section of specifications on concrete Portland Cement. This surface preparation to be done is a part of Portland Cement concrete work as set forth in Section E, Paragraph 1-G and Section E, Paragraph 77 of specifications. This report is hereby given you pursuant to Section K, Paragraph 48 of specifications.

When surfaces have been prepared, we shall proceed forthwith with the dash coat. Delay on your part is preventing us from proceeding and is resulting in additional costs to us in performance of our subcontract.’

The foregoing assertions by plaintiff that the concrete surfaces were not properly or adequately prepared provoked a reply from defendant on October 4, 1955, in which defendant insisted that the concrete surfaces fully complied with the requirements of section ‘E’ of the specifications, and proceeded to identify the building which were or would be ready to receive the plaster. The letter concluded: ‘You are herewith requested to proceed with your work as directed and cooperate in a proper manner to complete this job to our mutual advantage and preclude any further delays.’

Plaintiff replied to the letter of October 4 by letter dated October 13, 1955, stating: ‘Pursuant to the request contained in your letter of October 4, 1955, we are ‘proceeding with the work as directed’ by you. Before we can properly apply the dash coat as provided in the specifications, it is necessary that certain preparatory work be done to put the surfaces in condition to receive the dash coat. At your request, we have begun such preparation, which consists of applying a stucco float finish to cover imperfections and irregularities in the concrete. Obviously there is a dispute between us concerning responsibility for doing the work above described, and it is our contention that such preparatory work is not a part of the plastering specifications. However, at your request we are proceeding with the work. The dispute can be resolved upon completion of the contract. In the meantime for our own protection, we are treating this preparatory work as extra work and will bill you accordingly.’

It does not appear that defendant made any reply to the last quoted communication. Plaintiff thereafter proceeded with the plastering of the exterior walls of the four buildings utilizing the base or ‘float’ coat described above followed by the application of two ‘dash’ coats. In other words, plaintiff followed the method of application used in producing the sample which the architect had approved.

Both in the trial court and on this appeal, defendant has insisted most vigorously that the exterior plastering work for which plaintiff is compensated by the judgment at bar was neither requested by defendant nor necessitated by defective concrete surfaces, but was required by the inspector and architect as a condition of granting plaintiff’s request for permission to apply the plaster by a machine method in lieu of the hand method called for in the specifications. This contention centers upon an issue of fact and constitutes an attack upon the trial court’s Finding of Fact No. IX which reads as follows: ‘In addition to the work required of plaintiff under the terms of said subcontract and at the request of the defendant, J. C. Boespflug Construction Company, the plaintiff performed extra services and supplied extra materials consisting of an additional coat of cement plaster to all of the exterior concrete surfaces of the buildings at Westchester High School. By reason of said extra work, plaintiff’s costs were increased and the reasonable value of said labor and materials is the sum of $8,135.96. Said sum became due and payable on September 16, 1956.’

Our review of the record convinces us that the challenged finding is amply sustained by substantial evidence.

It is clear from the recited evidence that as late as mid-October, 1955, plaintiff and defendant were in disagreement as to what performance by plaintiff would be necessary in order to produce exterior wall surfaces which would conform to the requirements of the specifications and meet with the approval of the architect. There was abundant evidence that the concrete surfaces as they appeared in August were quite unsuitable to receive the application of plaster. Defendant’s request for plaintiff’s bid on the job of preparing the concrete could be construed most reasonably as indicating defendant’s recognition that extra work was necessary. It bears repetition that the architect previously had rejected the sample of stucco work consisting of two coats applied on the manner prescribed in the original specifications and had approved a three-coat sample applied in the manner later followed by plaintiff in completing the work. It may be inferred from the evidence that defendant was fully informed concerning the architect’s declarations in this regard. Defendant was advised by plaintiff’s letter of October 13 that plaintiff considered itself under direction to apply the plaster in the manner which the architect had approved. In these circumstances, particularly in view of the urgency of the situation then existing, the last paragraph of defendant’s letter of October 4 instructing plaintiff to proceed ‘as directed’ was susceptible to interpretation as a demand that plaintiff proceed without further delay to apply the stucco in a manner that would satisfy both the architect and the specifications.

Extra work as used in connection with a building contract means work arising outside of and entirely independent of the contract-something not required in its performance, not contemplated by the parties, and not controlled by the contract. Extra work may be performed by the contractor for the owner or by the subcontractor for the general contractor. Where the extras are of a different character from the work called for in the contract and no price is agreed on for extra work, their reasonable value may be recovered. In the instant case, as we have pointed out, the finding that extra work was required by the defendant is supported by substantial evidence to be found in the circumstances, in the communications attending the controversy and in the construction apparently placed on the contract by the parties as indicated by their conduct. Considering all the circumstances appearing from the record, it was not unreasonable for the trial judge to conclude that the extra work on the building was done at defendant’s direction, that it was necessitated by imperfect performance of concrete work for which defendant was responsible and that defendant was fully aware that the architect’s requirements could not be fulfilled without doing the extra work. The resolution of these purely factual questions is within the exclusive province of the trier of the facts. Since the findings are supported by substantial evidence this court is without power to substitute its deductions for those of the trial judge.

Defendant contends that a provision of the subcontract requiring a written change order specifying any extra work to be done bars any recovery by plaintiff. Section 12 of the subcontract provides as follows: ‘No claims for extra work will be recognized or paid for unless agreed to in writing before the work is done in which writing shall be specified in detail the extra work or changes desired.’ Since no written authorization of this character was given, it is defendant’s argument that plaintiff was required to plead and prove a waiver of this condition. It is settled, however, that this requirement of pleading is satisfied by the allegation of facts which would constitute a waiver. In the instant case the complaint incorporated the subcontract, including the requirement of a writing a connection with any extra work, and alleged ‘that in addition to the work required to be done by plaintiff under the terms of said subcontract, and at the special instance and request of the defendants, the plaintiff applied a leveling coat of cement plaster to the buildings.’ This pleading of a waiver is sufficient.

The second phase of defendant’s argument on this point is that the evidence is insufficient to sustain the finding of a waiver by defendant of the required writing. However, we have found the evidence sufficient to support the finding that the extra work was done at defendant’s special instance and request. Plaintiff previously had submitted a written offer to do this work for a specified amount. Defendant thereafter directed plaintiff to proceed without referring to the necessity of compliance with the requirement of section 12 of the subcontract. It has been held that proof of similar conduct is sufficient to support the finding of a waiver. As stated Wyman v. Hooker: ‘The evidence showed that the extra work on the building was done with the knowledge and consent of defendant and his agent, and that they waived the written stipulation that a separate written estimate of extra work should be submitted, by orally agreeing to and countenancing the work without written estimates.’

It was a purely factual question whether plaintiff adequately complied with the contractual provision requiring it to report to the contractor any surfaces not properly prepared before starting to plaster. It is implicit in the findings that the trial court resolved this issue in plaintiff’s favor. Apart from the written communications from which we have quoted in our recital of the evidence, the record reveals that there were various discussions between the parties during the summer of 1955 in which the imperfections in the concrete surfaces were extensively discussed. Obviously, we cannot say that this evidence was insufficient to support a finding that the condition under discussion was adequately fulfilled. The same disposition must be made of defendant’s argument that the extra work was occasioned solely by the change from the hand method to the machine method of application.

While it is true that the architect was constituted ‘the judge of the quality of materials and workmanship’, his approval of the concrete surfaces could not properly be regarded as a binding adjudication of the issues which the trial court was called upon to decide in this case. There was no reason to believe that the architect as representative of the school district would ultimately have accepted buildings which failed to measure up to prescribed standards. It seems reasonable to conclude that as of mid-October, 1955, neither plaintiff nor defendant could predict with assurance whether or not the architect would accept the buildings after an application of the stucco in the manner provided by the original specifications. Indeed, the architect’s rejection of a sample prepared in that way was a fact sufficient to support a finding that he probably would not have accepted them. At that time both plaintiff and defendant were faced with the necessity of making immediate decisions on the basis of their respective evaluations of the requirements of the specifications and of the conditions presented. Completion time was running out, and there appeared to be ample basis for apprehension of substantial liabilities in the event of further delay. It was within the sole province of the trial court to determine the factual questions upon which liability here depended: what quality of performance was being demanded of plaintiff; what methods were appropriate or essential to accomplish acceptable performance; whether extra work was necessary, and, if so, whether it was necessitated by faulty concrete surfaces or by plaintiff’s choice of method, and whether plaintiff reasonably complied with the conditions on its part to be performed.

It is generally held that the existence of an implied contract is usually a question of fact for the trial court. Where evidence is conflicting, or where reasonable conflicting inferences may be drawn from evidence which is not in conflict, a question of fact is presented for decision of the trial court.

The judgment is affirmed.

C. F. Bolster Co. v. J. C. Boespflug Const. Co., 167 Cal.App.2d 143, 334 P.2d 247 (Cal. App. 2 Dist. 1959).

Pagel v. Bailard

Lochner v. New York

Penson – Valid Arrest Based on Information from Informant Permitted

In the case of People v. Penson, it was held that a valid arrest may be made solely by reason of information communicated by a reliable informant as above defined herein. In the case just cited, the court stated: ‘The officers’ appraisal of the informant’s reliability was based upon the truthfulness of prior reports from this person which they had verified upon investigation.’ And in Trowbridge v. Superior Court, this court said: ‘that it is not the number of informers involved but the reliability of the informant and reasonableness of the information supplied which should count the most with the officer in making up his mind what to do.’ Under the facts and circumstances here present we entertain no doubt that the reliability of the informant was established.

That the officer’s recognition of the informant’s voice is competent evidence and a circumstance to be considered in the matter of identification is firmly established. Identity of a person is permitted by evidence solely of recognition of a voice. It is universally recognized that the voice as well as the physical appearance of a person, is a means by which identification is made possible, therefore testimony relating to the identity of the voice is competent, its probative value being a question of fact for the jury.

The apprehension of respondent that to justify his arrest would open the door to police officers to utilize fictitious informants in order to perpetrate illegal searches and seizures is answered by the court Lorenzen v. Superior Court, wherein it is stated: ‘An additional contention made by petitioner is answered in People v. Garnett: ‘Appellant assumes that police officers would, to suit their convenience, make use of fictitious informants as bases for illegal searches and seizures. Such assumption is unauthorized and is contrary to statutory presumptions that official duty has been regularly performed and that the law has been obeyed. When an officer has in good faith testified that he had acted upon the information of an unnamed person and that such informant was reliable, he has thereby established a firm basis for his search of a suspect’s premises. So long as the good faith of the arresting officer with respect to the reliability of his informant satisfies the scrutiny of the trial judge, he is in substantially the same position as if he had come with a warrant of arrest.”

Respondent relies heavily upon the case of Priestly v. Superior Court. To us it appears that this case does not aid him. In the Priestly case, an ‘information’ charged defendant with possession of narcotics. At the preliminary examination, an officer testified that acting solely on the information from two informers, he and another officer went to defendant’s apartment and knocked on the door. After some ten minutes defendant opened the door, whereupon the officers placed him under arrest and searched his person and the apartment. They found narcotics upon his person and in a dresser drawer. The arrest and search were made without a warrant. Defendant contended ‘this testimony was not competent since he objected to it, demanding that the identity of the informers be disclosed or the officer’s testimony be struck.’ The Supreme Court held that the communications of the informers was material to the issue of reasonable cause to make the arrest and search. Defendant’s motion that the identity of the informant be disclosed or the officer’s testimony be struck was denied by the magistrate and he was held to answer. When arraigned in the superior court defendant moved to set aside the ‘information’ on the ground that the evidence against him was obtained by illegal search and seizure. Upon the denial of his motion defendant sought a writ of prohibition to restrain the superior court from further proceedings on the ‘information’. The writ was granted.

Rice v. Heggy

McCarty v. Macy & Co.