Mott v. Wright , 43 Cal. App. 21 ( 1919 )

Appellants have filed a petition for rehearing in which several points are raised. [9] The first one is, that the contract in question was an entire and not a divisible one. The contract was made by Wright, the owner, with Williams, the contractor, and provided for the erection of a six-flat building upon a lot at Eleventh and O Streets, in the city of Sacramento, for the consideration of nine thousand five hundred dollars. Said contract also contained the following provision:

"It is hereby agreed that in consideration of receiving the above contract, the party of second part will furnish plans, and superintend the moving and erection of flats under present house, the location to be 23rd and L sts., without commission or consideration, it being understood that this work is to be done at absolute cost to the owner. The cost of remodeling not to exceed $1800 and moving not to exceed $125. He will also agree to superintend erection of garages and other work on lot which owner may desire under above conditions."

The specific point made is, that the work on the O Street property was not completed until June 4 or June 12, 1915, which is "the true date from which the tolling of the limitation of time within which liens may be filed is to be computed," and not May 12, 1915, the date of the completion of the work on the L Street property.

In neither appellant's opening brief nor in his reply brief is there one word concerning the Eleventh and O Streets property. Indeed, there seems from the record not to be any occasion for referring to that property, because there is nothing in the pleadings, nothing in the findings, nothing in the evidence, and nothing in the judgment having any reference to the O Street property except incidentally it is mentioned by one of the witnesses. The liens were all filed against the Twenty-third and L Streets property and there was no issue in the case regarding the O Street property. If questions can be raised for the first time in the petition for rehearing, there would never be an end to litigation. It has in many cases been held that where a case has been decided, a new point raised in appellant's reply brief or in the petition for rehearing will not be considered. (Buena Vista Oil Co. v. Park Bank of LosAngeles, 39 Cal.App. 716, [180 P. 12]; Camp v. Boyd, 41 Cal.App. 83, [182 P. 60]; Hibernia Sav. Loan Soc. v. Farnham,153 Cal. 578, [126 Am. St. Rep. 129, 96 P. 9]; Flores v.Stone, 21 Cal.App. 105, [131 P. 348, 351, 352].) However, in this case, we will consider the point raised.

In 13 C. J., page 563, it is said: "If the consideration is single, the contract is entire, but if the consideration is either expressly or by necessary implication apportioned, the contract will be regarded as severable. . . . Where the portion of the contract to be performed by one party consists of several and distinct items, and the price to be paid is apportioned to each item according to the value thereof and not as one unit in a whole or in a part of a round sum, the contract will ordinarily be regarded as severable."

In Elliott on Contracts (volume 4, section 3667) it is said: "A building, construction or working contract is entire and not divisible, where it is for an entire structure for a stated compensation. . . . If the price is apportioned among the several items or to the different parts of one item, the contract will generally be construed as severable."

In the case at bar "the price was apportioned to each item according to the value thereof and not as one unit," and we hold that the contract was not an entire one, but was severable.

As to the remaining points raised in the petition, that "provisions as to trivial imperfections were designed merely to prevent premature filing of liens" and that "slight work after substantial completion, done at request or with consent of owner or subcontractor, extends time for filing liens," we are satisfied with what is said in the main opinion.

The petition for a rehearing will be denied.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 23, 1919.

All the Justices concurred.