Consolidated Lumber Co. v. City of Los Angeles

This is an appeal from the judgment, and upon the judgment-roll alone.

The respondent contracted to furnish to the appellant a large amount of lumber to be used in the construction of a municipal wharf. The agreement provided, as shown by the findings, that the city might deduct from the contract price the sum of fifty dollars for' each day that delivery of the lumber was delayed beyond the contract time. It also provided that “said sum of fifty dollars per day, in view of the difficulty in estimating such damage, is hereby agreed upon, fixed, and determined by the parties hereto as the liquidated damages that the city will suffer by reason of such default, and not by way of penalty.”

The Lumber Company was twenty-seven days beyond the allotted time in completing delivery, and the city withheld the sum of $1,350 in settlement of the amount due. Respondent then brought this suit to recover the amount thus unpaid and judgment was rendered in its favor. The theory of the trial court, in awarding the judgment, is indicated by the following statement erroneously incorporated in the findings of fact: “The court finds that that portion of the specifications which was made a part of the…