Lowy v. United Pacific
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| Lowy v. United Pacific | |
| Court | California Supreme Court |
|---|---|
| Citation | 429 P.2d 577 |
| Date decided | July 21, 1967 |
Facts
- Lowy = plaintiff = he owned a sub-divided land in California.
- Wolpin = defendant = a contractor = he performed excavation and grading work on Lowy's land in December 1962
- In accordance with the contract, Wolpin would receive $73,500 for the excavation & grading work.
- Wolpin agreed to post surety bonds based on projected costs through United Pacific Insurance
- United Pacific Insurance Co. = Wolpin's insurance company = "United Pacific"
- Wolpin completed 98% of the excavation & grading work including an additional work amounting to $7,200
- As the parties approached the end of the project, a dispute arose over pricing.
- At that point, Wolpin stopped performing.
- So, Lowy hired another contractor.
Procedural History
Lowy sued United Pacific & Wolpin for non-completion of the work in California Superior Court.
Wolpin filed a cross-complaint for non-payment of the 98% of the work.
Lowy lost. Wolpin won damages for partial performance.Issues
May a party recover damages for partial performance of a contract when full performance has been excused, prevented, or delayed by the other party?
Holding
Yes. A party may recover damages for partial performance when full performance has been excused, prevented, or delayed, as long as the contract is divisible.
Judgment
Affirmed. Additional damages awarded for attorney's fees for Wolpin (& United Pacific)
Reasons
Justice McComb: If a party substantially performs, then that party is entitled to recover damages for partial performance.
Rule
A Severable Contract (divisible contract) may be partially performed & the party may recover for non-payment
