62 Wash. 373 | Wash. | 1911
Plaintiff brought this action against the defendant to recover upon two alleged causes of action. For the first cause the plaintiff alleged, that he entered into a written contract with the defendant by which defendant agreed to pay him ten per cent of all business which he might secure for defendant; that he secured a contract for
For answer to the complaint, the defendant denied the allegations of the first cause of action. Defendant admitted the contract alleged in the second cause of action, and admitted that it superseded and set aside the plaintiff from the work, and employed other workmen to install the plant; and denied that the plaintiff was ready, able, or willing to complete such installation, but alleged that the plaintiff failed, neglected and refused to properly or effectually install the plant; and denied any indebtedness to the plaintiff on account of such installation. As a further and affirmative defense, the defendant alleged that, upon the representation of the plaintiff that he was a competent engineer, the defendant employed him to superintend the installation of the said plant, which he undertook to do; but that he proceeded so carelessly
Appellant now urges that the court abused its discretion in this ruling. The action had been pending for several months, the case had been regularly set down for trial, and the jury had been impaneled to try the case. We are of the opinion that the court did not abuse its discretion in refusing to change the issues at that time, under the circumstances stated.
At the close of all the evidence in the case, the trial court refused defendant’s motion for a nonsuit, and directed a verdict for the plaintiff in the sum of $711-81. Appellant argues that the motion for a nonsuit as to the first cause of action should have been granted, for the reason that the complaint alleged a contract for the payment of “10 per cent on any business which the plaintiff might secure for the defendant,” while the proof shows a contract for “a commission of ten per cent to you on all goods of our manufacture,” and that there was a fatal variance which amounted to a failure of proof. There is no merit in his contention. The contract was made by letters passing between the parties. In one
Appellant argues that, upon the second cause of action, there was a conflict of evidence upon the cost of installing the plant, and therefore that question should have been submitted to the jury. But there appears to be no substantial conflict therein. The evidence offered by the defendant showed that the cost of installing the plant was, $205 for labor, $172.89 for freight charges, $31.85 for expressage, $25 for painting; making a total of $434.74, which added to the estimated factory price, makes the total cost of $2,307.24, which deducted from the contract price — $2,725, leaves a balance of $417.76, which would have been the plaintiff’s profit. This is substantially the sum allowed by the court. It is true, the defendant testified that it let a contract for $450 for installing the plant. But the contract included the contractor’s profit, which justly belonged to the plaintiff. The court properly refused to consider the cost of valves, pipes, etc., because those things clearly were a part of the plant which the defendant was required to furnish.
Dunbar, C. J., Parker, Gose, and Morris, JJ., concur.