National Pavements Corp. v. Hutchinson Co.

Plaintiff sued for damages for breach of contract. Defendant’s demurrer was sustained and defendant had judgment, from which plaintiff has appealed on the judgment-roll.

The complaint alleges that the plaintiff was the owner of the exclusive license to manufacture a certain paving material and, on January 18, 1927, filed with the city of Oakland an agreement to furnish to the city or to anyone to whom the city might award a contract for the paving of any street, such material, together with such expert assistance as might be needed and the right to use the patented process. Thereafter proceedings were duly inaugurated by the city council for the paving of certain streets within the city and for the use therein of the materials and processes owned by the plaintiff. A contract for this purpose was duly executed with the defendant which, in turn, entered into a contract with plaintiff whereby the defendant agreed to furnish all “sand, stone, clay, asphalt and mineral ingredients needed . . . ” for said work and to furnish and equip a paving plant and all the “fuel, labor, incidental materials and ingredients necessary for the production of said mixture”. Payments were to be made by…