68 Wash. 370 | Wash. | 1912
This action was commenced by Carlos N. Boynton, Henry W. Church and Samuel A. McCoy, copartners as Boynton, Church & McCoy, and A. E. Grant, against Ered Johnson and Iver Paulson and the copartnership of Ered Johnson & Company, to recover advancements made to Fred Johnson & Company. The amended complaint alleged that, on July 8, 1910, A. E. Grant and Fred Johnson & Company, a copartnership then consisting of Fred Johnson, Iver Paul-son and Charles Johnson, now deceased, entered into a written contract whereby Fred Johnson & Company, as subcontractors, agreed to do grading upon the line of the Northern Pacific Railway Company; that for work done under the contract Fred Johnson & Company were entitled to $20,-555.89, and that they were also entitled to $189.80 for extra work;
“(5) That in accordance with the understanding and agreement between said A. E. Grant and said defendants, the said A. E. Grant undertook and agreed to pay the labor bills and feed and merchandise bills for said work for the purpose of financing the defendants in the performance of said contract, and that said A. E. Grant and said other plaintiffs from time to time during the performance of said contract paid labor bills, feed and merchandise bills necessary to the performance of said contract by defendants in the sum of thirty-one thousand one hundred ninety-one and 40-100 ($31,191.40) dollars, making an excess payment on account of said contract over and above the amount earned by the defendants under the terms of said contract of ten thousand four hundred forty-five and 71-100 ($10,-445.71 dollars, which said last named sum the defendants now owe to the plaintiffs;”
that subsequent to July 8,1910, A. E. Grant assigned an undivided one-half interest in his contract to Boynton, Church & McCoy, and that the defendants are indebted to plaintiffs in the sum of $10,445.71.
Werner Broberg, administrator of the estate of Charles Johnson, deceased, was joined as a party defendant, but demurred to the complaint and was dismissed from the action.
“This- agreement, made by and between A. E. Grant, of Spokane, Washington, party of the first part, and Fred Johnson, Charles Johnson and Iver Paulson, copartners as Fred Johnson & Co., party of the second part,
“Witnesseth: That for and in consideration of the price hereinafter specified to be paid by the first party to the second party, second party agrees to do all the grading on the proposed new double track work of the Northern Pacific Railway Company and line changes thei'eon between Northern Pacific bridge across the Spokane River and approximately at the place marked on the blue print of said work ‘Mile 76’ and the point eastward therefrom marked ‘Mile 73,’ said work to be begun immediately and completed within four (4) months from date, the work to be done in accordance with the plans and specifications of the Northern Pacific Railway Company and the contract between the Northern Pacific Railway Company and Boynton, Church & McCoy, principal contractors for said work. In consideration of the above, first party agrees to pay second party for said work at the rate of seventeen cents ($-17) per cubic yard, which includes haul and classification, and to pay the second party on the 20th of each succeeding month the total estimate of work done less 10% to be retained until completion. In witness whereof,” etc.;
that A. E. Grant, as a subcontractor, had theretofore entered into a written contract with his coplaintiffs Boynton, Church & McCoy, which was neither shown nor truthfully explained to Johnson & Company; that A. E. Grant stated to Johnson & Company there would be no greater haul than one thousand feet; that’ the material to be moved would be loose dirt only, and that the work could be done for a profit at seventeen cents per yard; that Grant further agreed to
For a second affirmative defense, the defendant Fred Johnson, on behalf of himself and the firm of Fred Johnson & Company, further alleged that A. E. Grant did not disclose to Johnson & Company the terms of his contract with Boynton, Church & McCoy, nor the Northern Pacific Railway Company’s plans and specifications for the work; that Johnson & Company had no knowledge thereof; that A. E. Grant assured them the work would require'no greater haul than one thousand feet; that he also assured them the material to be moved was loose earth and could be easily and profitably handled with defendants’ teams, scrapers, graders, picks and shovels, at the contract price of seventeen cents per cubic yard, and that he would see them through without loss; that defendants made no preliminary examination of the material to be moved, being prevented by Grant from so doing; that soon after the work was commenced a steam shovel was found to be necessary to move the material; that it was procured by defendants at Grant’s instance and request; that it was placed by Grant more than three thousand feet from the grade; that the defendants were thereby required to move the material a- distance of more than three thousand feet, and were induced so to do by the promise of Grant that he would pay them a reasonable price therefor; that the word “haul” when applied to earth means a haul of no more than one thousand feet; that all haul of more than one thousand feet would be an overhaul and should be paid for at one cent per hundred feet for each cubic yard; that the
“(1) Were the advances and payments made by Albert Grant to pay the pay roll and to provide necessary funds for carrying on the contract made with the understanding that the same should be payable out of the funds derived from the contract and not from any other source? Yes.
“(2) Was there loose rock and overhaul actually delivered to the grade by the defendants, and did the said Albert Grant agree to pay therefor a reasonable price? Yes.”
From a final judgment entered upon the verdict in favor of Fred Johnson as surviving member of the firm of Johnson & Company, the plaintiffs have appealed. ,
Appellants present numerous assignments, in substance contending that the trial court erred, in admitting proof of oral negotiations leading up to the written contract, in admitting proof of subsequent statements between appellant Grant and respondents, in admitting proof of the character of the material that was moved by respondents; and in instructions given and refused. Their controlling contention seems to be that this action is predicated on a written contract, the execution of which is admitted, and that no evidence should have been received which tended to contradict or vary its terms. We do not understand that any oral evidence was admitted for that purpose. The only written contract that was executed is quoted above. Appellants are demanding judgment for advances made in pursuance of an oral agreement. There is not a word in the written contract mentioning or calling for such advances. The contract upon which this action is predicated, in part at least, is an oral one, and is pleaded in the fifth paragraph of the complaint.
As to evidence admitted showing the character of material to be moved, the distance it was to be moved, and the meaning of the terms “haul” and “classification,” we also conclude no error was committed. The respondents contend that the written contract was induced and procured by untruthful representations of the appellant Grant, upon which they relied; that he stated the only material to be moved was earth, which could be profitably handled with respondents’ outfit or equipment; that appellant Grant took respondents to a point near the work, in his automobile; that he would not wait for them to examine the ground or the borrow pits from which the material was to be taken, but prevented them from doing so; that he represented there was nothing to move other than earth; that respondents relied upon his statements, but that when work was commenced they found they would be required to move loose rock and cement gravel which would cost from thirty-two to thirty-five cents per cubic yard, and that they thereupon complained to appellant Grant, who told them to go ahead and he would see that they were properly compensated and protected. This evidence tended to show, (1) that the execution of the written contract was procured by misrepresentations of Grant, and his action in preventing a personal inspection of the ground and the borrow pits, and (2) that later he made a new or modified oral contract by which he agreed to compensate respondents for the actual work they were required to do in moving the rock and cement gravel and in making the overhaul. Such evidence was properly admitted.
The evidence shows that respondents did the work, first using their own equipment consisting of teams, scrapers, graders, picks, and shovels; that later a steam shovel became necessary to move the material, which proved to be loose rock and cement gravel instead of earth; that appellants paid for the labor, supplies and materials; that respondents have not received one dollar of compensation for themselves, or for the use of their large and expensive equipment; and that appellants now claim that respondents are still indebted to them for more than $10,000. The evidence further shows that the character of the work was misrepresented; that instead of moving earth respondents were required to move loose rock and cement gravel at almost a double expense; that instead of making a haul of only one thousand yards, they were compelled to make an overhaul of three thousand yards or more, and that by a subsequent oral agreement appellant Grant agreed to compensate them therefor. The evidence was conflicting, but the verdict and the special findings
Dunbar, C. J., Ellis, and Morris, JJ., concur.