SAN FRANCISCO BRIDGE COMPANY, Respondent, v. DUMBARTON LAND AND IMPROVEMENT COMPANY, Appellant, 119 Cal. 272

McFARLAND, J. This is an appeal by the defendant from a money judgment- in favor of plaintiff, and from an order denying a new trial. Each party is a corporation. The action is brought to recover upon a quantum meruit for certain work done by the plaintiff upon a levee on the land of defendant, and for certain materials furnished by plaintiff and used in said levee. It was averred that said work and materials were reasonably worth the sum of $15,000; that defendant has paid thereon $3,000, and no more; and that there is due the sum of $13,000, for which judgment is prayed.

At the trial there was a stipulation as to what the actual value of the said work and j materials was, and in accordance with said stipulation it was) found to be $9,983; and, deducting the $3,000 paid, judgment! was rendered for plaintiff for $7,983. This finding was amply sustained by the evidence; and the judgment was correct, unless a certain special defense set up by defendant can be maintained.

The answer sets up as a special defense that the said work was done by plaintiff under a special written contract entered into by the parties on the twenty-second day of April, 1893, by which it was covenanted by the plaintiff that, “in consideration of the promise of said party of the second part hereinafter set forth,” it would build and construct for the defendant a certain levee, in front of certain lands of the defendant, the levee to be constructed of a certain size, and in a certain manner, and to be about 38,000 feet long.

In consideration of the covenants of the plaintiff, the defendant agreed to pay it the sum of $31,500, “fifty (50) per cent of said sum to be paid in monthly payments as the work progresses, in amounts proportioned to the amount of work and labor done and material furnished and used about said work at the time such payments are made,” the balance to be paid after the work should be complete.

The work was to be done "between the first day of May, 1892, and the thirtieth day of October, 1892.” The plaintiff commenced the construction of the levee on the tenth day of May, 1892, and proceeded to construct the same in accordance with the provisions and requirements of said contract. On the tenth day of June, when the first monthly pajunent was due, the defendant failed to make said payment or any part thereof.

It also failed to make a payment on the tenth day of July; but on the fourth day of August, 1892, the defendant paid the plaintiff $2,000, being the amount of the two payments which were delinquent on the 10th of June and on the 10th of July. But no payment was made on the 10th of August, nor was any other payment thereafter made at all by the defendant, although it was urged frequently by plaintiff to pay said unpaid monthly installments, and defendant continuously promised to pay the same.

Defendant employed an engineer to examine the work, and to report the amount done, and he, on October 17th, made his report showing the amount of work done and the amount due on the monthly installments; but it appeared, from the fruitless efforts of the plaintiff to have said payments made, that defendant could not or would not pay the same, and thereupon the plaintiff notified the defendant that unless the overdue installments were paid the work would be abandoned, and that if payment was not made before October 30th, which was Sunday, operations would be suspended.

The defendant still refusing and neglecting to make any such payments, the respondent, on October 31st, elected to treat the contract as at an end, quit work, and refused to proceed any further with it. Thereupon this action was brought to recover for the value of the work already done. The failure to make the monthly payments was a substantial breach of the contract by defendant, and justified the plaintiff in refusing to proceed further thereunder; and the defense set up by the defendant of a special contract cannot be maintained. The case is clearly within the doctrine of Cox v. McLaughlin, 76 Cal. 60, 9 Am.

St. Rep. 164, and Porter v. Arrowhead Reservoir Co., 100 Cal. 500. We see nothing in the present case that takes it out of the rule announced in those two eases; and, therefore, it is unnecessary to notice the numerous cases to the same point cited by respondent from other states. The defendant cannot defeat the claim of the plaintiff to recover the reasonable worth of his work upon the ground that the levee was not completed within the time mentioned in the contract; because the defendant itself was first in default. It cannot defeat the plaintiff, as was said in the note to Cutter v.

Powell, 6 Term Rep. 320, 2 Smith’s Lead. Cas. 46, “by setting up a contract which he himself has broken by not paying at the appointed time. The nature of the action and the legal ground of recovery, therefore, are precisely the same as where there has been in fact no special contract at all.” The defendant, having failed to comply with the condition of payment on its part, cannot insist that the respondent should proceed and complete the contract within the time specified. As was said in Tyson v.

Doe, 15 Vt. 571: “To allow the defendant to insist on that stipulation, whilst he repudiates others, would be to enforce a different contract from that which the parties enter into.” Ueither are the rights of plaintiff affected by the fact that it did not stop work immediately after the failure of defendant to make the first payment. It had a right to rely for a reasonable length of time, at least, upon the promises of the defendant to pay. It was said by the supreme court of the United States in Canal Co. v.

Gordon, 6 Wall. 569, that although the plaintiffs in that case “adhered to the contract, and pursued the work longer than they were bound to do, when they retired they were fully justified and had a clear equity to be paid a fair compensation for the work they had performed.” We see nothing in the point that the contract did not expressly provide a specific method of determining the amount due at the end of each month for the work already performed.

There seems to have been no difficulty in determining the amount that was due for the first two months; and defendant’s own engineer in October reported the amount then due, so that there was no question on that point. We do not see any material error committed by the court in sustaining objections to certain evidence offered by the defendant.

The first four questions noticed in appellant’s brief, asked of the witness Kohrbacher, were all to the point whether or not the witness had informed the president of the plaintiff that it was important that the levee should be built within the time .-specified in the contract; and we do not see how an answer to the questions would have added anything to the terms of the contract itself.

The other questions concerned the point whether or not the work done on the levee “is” of any present benefit to the defendant, and whether it has sustained any loss from the fact that the levee was not completed within the time specified in the contract; but the action is to recover the value—the extent of which in money is stipulated in the record—of the work and labor performed by plaintiff at the instance and request of defendant, and, as we have before seen, the defendant having first broken the contract by not performing the covenants, cannot, under the circumstances of this case, insist upon detriment caused by the failure of plaintiff to do something which was to be done only upon condition that defendant performed its part of the contract.

We see no further points necessary to be specially noticed. The judgment and order appealed from are affirmed. Harrison, J., Van Fleet, J., and Garoutte, J., concurred.