age to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section. "Sec. 1671. The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage." The first of these sections having declared all contracts fixing liquidated damages in advance to be void, except as provided in the next section, it is clearly incumbent upon the party seeking to recover upon such agreement to show by averment and proof that his case is within the exception, for without an allegation bringing his case within the exception the complaint in that regard is insufficient, the presumption being, in the absence of such allegation, that such agreement is void. In Jack v. Sinsheimer, 125 Cal. 564, the action was to quiet title to land. The answer set up a lease in which the lessee agreed that upon his failure to pay rent he would vacate the premises upon thirty days' notice, and would pay one thousand dollars "as settled and liquidated damages." A demurrer to this answer was sustained, and, defendant refusing to amend, the plaintiff had judgment, and upon appeal the judgment was affirmed. In Patent Brick Co. v. Moore, 75 Cal. 210, it is said: "Certainly the stipulation in the bond does not of itself, in the absence of all other evidence upon the subject, make it clear that it would be extremely difficult or impracticable to fix the actual damages that would result from a breach of the bond in not finishing the building by a certain date." In the present case there was therefore no issue under which the evidence could properly be received, and the court erred in admitting it, and for this error the judgment must be reversed. 2. Plaintiff also seeks to recover additional sums which it is alleged it was compelled to pay Driskill in addition to the contract cost, for correcting imperfections in Lutge's work. Upon this ground the court found in favor of the plaintiff upon several items, aggregating the sum of $201.75, all of which is strenuously disputed by appellants, and as this part of the controversy is largely, if not wholly, based upon the construction of Driskill's contract, some consideration should be given it in view of a new trial. Lutge's contract required him to furnish all the labor and materials and erect and finish the building according to the plans and specifications. In entering into the contract with Driskill for the completion of the building it was doubtless the purpose of the plaintiff to secure its completion, so far as possible, in accordance with the requirements of the original contract with Lutge, under which one half of the work, or more, had been performed, but it was impossible to put Driskill in precisely the same relation to the work which Lutge had occupied. Lutge having furnished the material and performed the work up to the stage at which he abandoned it, was conclusively bound to know of all defects both in materials and workmanship, and was bound under his contract to correct them. Driskill was not bound to know of defects that were not apparent to a competent and careful observer, or which were not called to his attention at the time he entered into his contract. The correction of such defects, if any there were, was not covered by his contract; but those defects which were apparent to a skilled observer, exercising reasonable care, were within his contract, and he was bound to correct them without extra compensation. Lutge, as has been said, was to furnish all the material for the construction of the building, and at the time he abandoned work under his contract there was left unused material intended for the building, and this material Driskill was to use. Part of this material consisted of mortar or cement already prepared, in which was incorporated coloring matter, to avoid the necessity of painting, and this proved to have been improperly prepared, so that when used the color was not uniform, and had to be remedied. Here the rule herein before stated furnishes the test; if it was apparent that the mortar or cement had been improperly prepared, it should not have been used. But if the defect could not with reasonable care be discovered until it had been put on the building and dried, the expense of painting was not covered by the contract, and was properly allowed as an extra. What the facts were is for the trial court to determine. Appellants also contend that the court erred in overruling their demurrer to the complaint upon the ground of uncertainty. The eighth paragraph of the complaint alleged, in substance, that Lutge did not provide the material required by his contract, and, in consequence of imperfect construction and improper materials furnished for and done by Lutge, the plaintiff was compelled to pay and did pay for the correction of such work, so as to make it conform to the contract made by Lutge, the sum of $331. It is contended that defendants had no means of determining from these allegations in what respect Lutge's work would be attacked or what evidence would be required on the part of defendants. We think the demurrer was properly overruled. It certainly could not be necessary to state in the complaint a cause of action as to each of the defects in Lutge's work for correcting which the plaintiff sought to recover; but while permitting pleadings to be condensed and simplified in respect to such matters, the code has provided against surprise, by requiring the plaintiff to furnish, when demanded, in writing, a copy of the account, under the penalty of being precluded from giving evidence thereof. (Code Civ. Proc., sec. 454.) This section uses the words, "the account," but we think it includes such demands as are stated in this case. In Barkley v. Rensselaer etc. R. R. Co., 27 Hun, 515, in speaking of section 531 of the Code of Civil Procedure of the state of New York, it is said: "In ordinary language, the word account is applied to almost every claim on contract which consists of several items." We think it is so used under our code; and it is there expressly said: "It is not necessary for a party to set forth in a pleading the items of an account therein alleged." Appellants' contention is not that a cause of action for these items is not stated, but that they were entitled to an allegation "which would have given them an opportunity in advance of the trial to ascertain the points. upon which they would be called upon to make a defense." This would lead to an unnecessary prolixity in pleading, which it was intended to avoid by giving a remedy under section 454 of the Code of Civil Procedure. That the demurrer was properly overruled, see Wise v. Hogan, 77 Cal. 184; Pleasant v. Samuels, 114 Cal. 34; McFarland v. Holcomb, 123 Cal. 84. I advise that the judgment and order be reversed and a new trial granted, with leave to the parties to amend their pleadings, if so advised. Gray, C., and Smith, C., concurred. For the reasons given in the foregoing opinion the judgment and order are reversed and a new trial granted, with leave to the parties to amend their pleadings if so advised. McFarland, J., Temple, J., Henshaw, J. [S. F. No. 1975. Department One.-January 25, 1902.] V. A. DE PROSSE et al., Respondents, v. ROYAL EAGLE DISTILLERIES COMPANY, Appellant. ACTION ON QUANTUM MERUIT-WORK PERFORMED IN OPPOSITION TO ORDER. An action on quantum meruit, to recover the reasonable value of services performed, is based upon a request to perform the services; and such action will not lie for services performed in violation of an express order of the defendant not to do the work sued for. ID.-BREACH OF ENTIRE CONTRACT-REPUDIATION OF PART-WAIVER OF OBJECTION AS TO OTHER PARTS-CONTINUANCE OF WORK.-The defendant, who had employed the plaintiff to oversee the construction of a building under an entire contract, could repudiate the contract in part, and order such part of the work not to be done. In such case, the plaintiff could either treat the repudiation of the part as a breach of the entire contract, and discontinue all work, or could waive the breach as to all other parts of the work not included in the part repudiated, by continuing the work. APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. William R. Daingerfield, Judge. The facts are stated in the opinion of the court. P. F. Dunne, and H. H. McPike, for Appellant. The defendant had a right to countermand the order as to part of the work, and the plaintiff, who went on with the work, cannot recover on quantum meruit for the part countermanded, as though the order had not been countermanded, but can only recover just compensation for breach of the contract and for the other work done. (Clark v. Marsiglia, 1 Denio, 317;1 Lord v. Thomas, 64 N. Y. 107, 109; Collins v. Delaport, 115 Mass. 162; Owen v. Frink, 24 Cal. 178; Danforth v. Walker, 37 Vt. 239; Tufts v. Lawrence, 77 Tex. 526, 528; Black v. Woodrow, 39 Md. 217; Heaver v. Lanahan, 74 Md. 497; Collyer v. Moulton, 9 R. I. 90;2 Davis v. Bronson, 2 N. Dak. 300.3) Reddy, Campbell & Metson, for Respondents. An entire contract cannot be rescinded in part. (Purdy v. Bullard, 41 Cal. 444; Day v. Central Ry., 53 Barb. 250; Fay v. Oliver, 20 Vt. 118.4) The plaintiff had the right to treat the contract as rescinded, and recover the whole percentage agreed upon in quantum meruit. (Marcott v. Beaupre, 15 Minn. 152.) Plaintiff was entitled to recover in quantum meruit the reasonable value of the services rendered where the contract is violated. (Waggeman v. Richardson, 47 Ill. App. 219; San Francisco Bridge Co. v. Dumbarton etc. Co., 119 Cal. 272; Porter v. Arrowhead Reservoir Co., 100 Cal. 500; Cox v. McLaughlin, 76 Cal. 60.5) GAROUTTE, J.-Plaintiffs are architects, and were employed by defendant to prepare the plans, specifications, etc., and oversee the construction of a certain building, and in consideration of their services they were to receive four per cent of the cost of the building. The plans of this structure included the construction of a very elaborate cafe, and while in the negotiations leading up to the employment of the plaintiffs they insisted upon a compensation amounting to five per cent of the cost of the building, yet finally, actuated by the fact that their employment was to extend to the entire work, including the interior decorations of this cafe, they agreed to undertake the work upon the basis of four per cent. Considerable work was done by them under the contract, but very little of it upon the interior decorations of the cafe, when upon July 31st, defendant addressed 1 43 Am. Dec. 670, and note. 298 Am. Dec. 370. 8 33 Am. St. Rep. 783. 449 Am. Dec. 764. |