Lowy v. United Pacific Insurance Corp.

429 P.2d 577 (1967)

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Nature of the Case

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Facts

P entered into a contract with Wolpin (D), a licensed contractor, for excavation and grading work. It was on Tracts 26589 and 19517 and for the lump sum price of $73,500.00. The construction of pavement, curbs, and gutters was not included in the list of specific items for which the sum of $73,500 is to be paid. Exhibit 'B' lists 45 unit prices ranging from $.04 to $4.50 per unit for use in the computation of the amount to be charged for the performance of that part of the street improvement work consisting of paving the streets and installing curbs and gutters. The unit prices are entirely unrelated to excavation and grading. D posted two different surety bonds, one for the excavation and one for the street improvements. After 98% of the work was performed a dispute overpayment erupted and D ceased performance. P sued D and its bonding company for breach of contract. D answered and cross-complained for breach of contract and reasonable services rendered. D was given recovery on the grading on his cross-complaint based on the doctrine of divisibility and substantial performance. D was not given any recovery on the street improvements. P appealed.