Souza & McCue Construction Co. v. Superior Court

The City of Salinas brought an action against Souza & McCue Construction Co., Inc., seeking damages for the alleged breach of a contract made in June 1958, as modified in September 1958, for the construction of a storm sewer. Souza filed an answer denying the breach and a pleading denominated a ‘ ‘ cross-complaint ’ ’ setting forth two causes of action; the first cause of action is for the recovery of the balance allegedly due under the June 1958 contract as modified, and the second is a common count for goods and services assertedly furnished by Souza at Salinas’ request. After Salinas filed an answer to the cross-complaint, Souza moved for leave to file an amended answer and cross-complaint. The motion was denied, and Souza seeks a writ of mandate to direct the trial court to permit the filing of the amended pleading.

The proposed amended pleading incorporates by reference the allegations of the original answer and cross-complaint and adds a third and a fourth cause of action.

The allegations of the third cause of action may be summarized as follows: Salinas knew prior to entering into the June 1958 contract that the soil at the construction site was unstable and failed to…