*1 Argued September 15, 1973 10,reversed and remanded November Appellants,
HAWKINS
v. TEEPLES
et
al,
Respondent.
and THATCHER, INC.,
TONGUE, This is an action aby subcontractor against general contractor for breach of a contract on a con- struction with a job, counterclaim con- general tractor against the subcontractor for breach of the same contract. The case was tried before the court, without a jury. trial court found for their in the sum complaint of $6,636.27- full amount —-the prayed for —and then found for the defendant on its counterclaim in the sum of $11,501.19. The court then entered judgment favor of defendant and against for the sum difference, of $4,864.92. *3 Plaintiffs appeal.
The facts.
Defendant was the general contractor for the construction of a treatment sewage plant for the City Bend. Because of North of the low elevation and the water table of the site and high plant the need for the dry, “excavation hole” to be defendant entered into a with “dewater” subcontract to the plant site. be This was to accomplished “jetting” into the a series of 70 vertical “well point” in ground pipes of the all four sides site plant on and pattern then such the to a tops pipes horizontal connecting with a to be connected The pump. pipe,” “header sub- form provided defendant, on a and contract, printed fixed date had no 1971, July 23, completion dated but specified a “dewatering” operation, fixed of the following pro- price and the $6,686 included as Article IX: visions, any respect, in SUBCONTEACTOE,
“Should the fail promptness prosecute and work with carry diligence, work in the manner or fail to on the provided in this shall CONTEACTOE days liberty, (2) after two notice to thé be at SUB- remedy such defects or breach, CONTEACTOE in the contract to be and to to declare default, completion of the work contracted take over the for, and, event, SUBCONTEACTOE any payment entitled to receive further shall not be wholly be at which finished,, work until said unpaid paid of the amount to if the balance be time, expense in- this contract shall exceed the under finishing this work, such excess shall curred in be paid if SUBCONTEACTOE, such ex- unpaid pense shall exceed such balance, SUB- PAT THE SHALL CONTEACTOE DIFFEE- THE TO CONTEACTOE.” ENCE July plain- defendant “authorized” 26, 1971, On “immediately.” start work Plaintiffs then tiffs to points,” “jetted connected the in” the “well “header August pumping pipe” 15, started 1971. according plaintiffs, day, the water level next satisfactory dropping manner and in a in- was equipment that it could move defendant formed excavation. start
According witnesses, however, to defendant’s discharge significant any pumps did not plaintiffs’ plaintiffs’ evident that and it was of water amount system “dewatering” not and could not “dewater” satisfactory manner. in a area the excavation morning August 16, 1971, after theOn *4 pumping for some hours, defendant had tiffs plaintiffs stating note if written delivered by operational full condition system in the end “is not they Aug. day, today, 16, 1971, will the work you being your subcon- to declare as unable fulfill agreement event, in such an that, tract with them” and charge plain- defendant would take over the work and any resulting tiffs Plaintiffs admitted that with costs. “they they had told us wanted to do it as fast as we us they they get could and said that wanted us to started immediately, they why asked us two or three times They we hadn’t.” that this testified, however, “complaint,” first at least about the manner in which being charged sys- the work was done or one that being any tem as them installed with defective way. morning, August
The next 17, 1971, job. tiffs were dismissed from the Defendant then en- gaged another subcontractor, who a similar installed “dewatering” system days, in four but with a different type points,” packed gravel, of “well and with a larger pipe” type “header pump. and a different system operated successfully That and six or seven days later defendant started its excavation. Plaintiffs’ points” “well according were removed and, to de- fendant’s clogged witnesses, were found to be with by plaintiffs. sand. This was denied pleadings. complaint, alleging Plaintiffs’ after the alleged plaintiffs “performed all the work re- quired by the contract,” but that “defendant terminated plaintiffs’ work, without cause, and in violation of contract” and breached respects: the contract in three by terminating plaintiffs’ giving work “without two days’ required by as by doing Article IX,” so “without causes as described in Article IX,” and failing pay plaintiffs required by the contract. *5 allegations and these denied
Defendant’s answer parties entered into alleged, the that counterclaim, as a performed its obli- “has that defendant the contract; required gation” de- bnt “was contract, the under in default” and that: be clare the [sic] said subcontract has breached “Hauser agreement, to [sic] and refused Hauser failed in that system point provide, a or install well furnish dry provide remove such hole, failed to excavation a to furnish apparatus and failed installed, as was complied with the which and installation materials required agreement, specifications as of the all agreement.” aforesaid subcontract the damaged alleged that it had been then Defendant judgment prayed in that and $18,212 sum of amount. plaintiffs’ reply. allegations denied in were
These judgment findings the trial court. and judge the trial stated trial, of the the conclusion At that: * “* * [T]he finds for the on Court Complaint principally, basis, on the that Plaintiffs’ provided which was and written contract, two-day provides for a and notice, that defendant, given him. not was got and anxious couldn’t wait “The defendant If the defendant had 24 hours. waited the extra until the 18th before terminating might it him, have right, they jumped when in there and all
been give on the 16th and then threw him him notice off they job breached the contract, 17th and They contract. were the their own ones was printed and on their own drew form according their evidence.” to the reference counterclaim, the Next, with judge stated: counterclaim —I am afraid the
“The Court must of the defendant in favor there. find question appears, least, at when “There is no —it particularly the evidence all the evidence is in— support there a the counterclaim —that plaintiffs, of the breach here on behalf working system produce could not a very questionable did it is to whether not, they they given an extra 24 could had actually say hours. I can’t whether could or * * *” couldn’t. judgment stated The court then entered which *6 that : plaintiffs of court finds on their “The in favor
complaint in sum $6,636.27. of The further court finds for defendant on its counterclaim in the sum hereby foregoing, of $11,501.19. Based on the it is “ORDERED that defendant recover judgment against plaintiffs and each of them in the * * amount $4,864.92, of are, findings court so inconsistent and con- of fusing support judgment. he as to to insufficient assignment
Plaintiffs’ of error is that court “the finding in erred in favor of defendant on its counter- finding complaint.” claim after for on their Implicit statement is the this contention that was inconsistent for the trial court find to in favor of de- finding on its fendant counterclaim after for complaint. tiffs on their general finding
It is established, of that a course, by judge of fact in an a action at law tried with jury equivalent jury out a is a verdict and can by by supported aside any not be set this court when substantial evidence. Gordon Tree Creek Farms v. Layne et al, 230 204, 217, Or 358 P2d 1062, 368 P2d (1962). Honeywell, 737 As stated in Admr. v. Turner, (1958), 214 700, 705, Or 332 P2d finality 638 “The finding by a sitting the trial jury court when as a is sight frequently too lost of.”
158 find when however, that established,
It
also
is
or
by
ings
so inconsistent
are either
a trial court
of fact
vague
cannot
confusing,
that this court
or indefinite
so
to
intended
the trial court
the facts that
determine
judg
support
findings
a
are insufficient
such
find,
143 P2d
Martin,
605, 611,
v.
172 Or
Larsen
ment. See
(1943);
Co.,
v.
Electric
239
United States
Jefferson
(1934);
L ed 859
443,
54 Ct
78
406,
291
S
386,
US
(1950);
RI
A2d 277
Frenze,
391,
71
Zuccaro v.
(1921);
Meyer
App
159 completed performance have conld not that given extra 24 an been of the contract “had hours.” also counterclaim the other defendant’s hand,
On theory. proceeded However, on breach of contract a recovery provisions under the defendant did not seek by expense of of Article IX for the amount which completion unpaid on the exceeded the balance due sought the total cost but instead to recover expenses completing incurred defendant project.
Although entirely appears not clear, that de may proceeding theory on fendant provide not the contract did the exclusive means terminating the contract and that could defendant stipulated it without the terminate where the material. › prevail breach was order on such a theory, prove however, defendant would have to not only plaintiffs’ breach inwas fact material, but substantially performed also that defendant had its obligations own under the contract.
For the same
in order to
reasons,
find in favor
of defendant on its counterclaim, the trial court neces-
sarily
only
had to find not
that there was a material
by plaintiffs,
breach of the contract
but also that there
performance
substantial
a
the contract
de-
finding,
completely
fendant. Such
however, is
in-
previous finding
consistent with the
that defendant
by wrongfully terminating
violated
it,
› See Williston
(3d ed) 165,
6
1,
842, citing
Contracts
n.
§
Enterprises,
DeMare,
Foster-Porter
20,
Inc. v.
198 Md
necessary support of the the to complaint. plaintiffs on its of court in favor attempting may court was trial It he the to damage provisions apply of the contract to the or of the “excess” the “difference” award defendant engaging upon expenses another sub- incurred total payable unpaid and the balance contractor and such a however, tiffs. This is no means clear, only proper of result would be if notice termination given by the had been defendant accordance with provisions of Article whereas the trial court found IX, contrary a result addition, to be true. such the scope pleadings, would be outside the the because sought party obtain a determination under neither any of the Article IX amount “excess” or “differ- owing party, provided by pro- to either ence” of the contract. vision being law,
This an action at rather than a suit , power any equity, has no dif this court make findings try additional much less to fact, ferent or appeal. contrary, “de novo” on this this On the case review of this is limited to a our case determination of findings by supported trial whether court are by any findings substantial evidence and whether such support judgment. are sufficient to Cf. Andersen Equip., v. Waco & 259 Or 100, 104, 485 P2d Scaffold findings Because, however, the in this confusing case are so inconsistent that we can not determine what court intended to find, support judgment are insufficient of It -in this case. trial court follows that we must either findings by for further remand trial court or re trial. mand for a new ' have, occasion, We cases for remanded fur- *9 Larsen new trial. See findings, a than for rather ther & v. supra, Andersen Waco and Martin, v. Scaffold been have we supra. cases, however, Equip., In other preferred to remand practice and of critical that 204 Or Pendleton, v. Farris a new trial. See cases for (1955), v. and P2d 362 Scott P2d 284 530, 972, 281 537, P See P 899 742, Ford, 531, 552, 45 Or supra, and Co., v. Electric also United States Jefferson supra. Frenze, Zuccaro v. in is in which there is a basic This case one findings by consistency the rather court, the trial in findings incomplete or are am in which the than one might biguous, sufficient the mak be rendered ing findings. judge the trial addition, of additional from the to determine was unable evidence whether “produce working sys or could could not a satisfy (i.e., require tem” one would that days’ given provided ments) if a full two notice, as As record, the we read the little evidence contract. among that others. offered on issue, parties may Upon a new trial both offer evidence possible make which will resolve this and other and For these under all of reasons, issues. the facts judg- case, and of this we hold circumstances that the court should be set aside and ment the that this for new be remanded a case should trial. and remanded.
Reversed dissenting. C. O’CONNELL, J., judge’s explanation the trial statements in If made given judgment strictly reading are a literal inconsistency sure, be an is, there irreconcilable in his conclusions. process reasoning
However, which the reaching so evident is its conclusion trial court used in highly technical to remand the and it seems unfair ease for a new trial. trier as the court,
It seems clear that plaintiffs could not facts, concluded either that the produce working system was not that, if this or certainty, the were such established -with circumstances assuming not that defendant was unreasonable perform consequently could acted not reasonably taking plaintiffs job off the sub stituting another contractor continue with work. given days’ acting, had two If defendant before any question would there not have of the defend right to terminate contract. ant’s But defendant *10 problem was faced with a covered not the contract; where was is, evident could not perform consequently giving days’ of two notice purpose. would serve no such Under circumstances, given though comply did not with the terms defendant of the was nevertheless entitled to merely its breach recover because technical justifiable. ‹ my opinion is judge this what the trial say. purported actually to His say statement, “I can’t they [plaintiffs] whether or per could couldn’t” have formed is inconsistent not with this since the crucial plaintiffs’ capability is perform factor not the actual to as determined at the time of trial, ap rather their at the time of termination. › capability parent Having decided that prevail, defendant was to ' determining court was then faced with the amount damages. expended "of The court found that defendant ‹ Contracts, 1259, pp. Corbin on (1962); 32-33 § Restatement, Contracts § › supra Corbin 1260. § See plant it was dewatered. But site to have $11,501.19 clearly it would have that amount since not entitled to pay required if for the work $6,636.27 completed was en- their contract. Defendant tiffs had only to the amount excess that which it was titled expend plaintiffs’ per- required due failure amount was To awarded $4,864.92. form. This have more than this would been to enrich defendant unjustly. defendant presented by problem
The in this case is judge’s explanation trial for the result he reached. In- explaining having stead of result been reached by crediting plaintiffs prevent with the $6,636.27 to unjust reasoning enrichment, the court cast his pursuant prayer terms of an award made to the plaintiffs’ Although, complaint. technically, this was permitting inconsistent with defendant to recover on its counterclaim, it nevertheless seems evident that the simply computing damages court was the net which proceed- defendant suffered. For this reason, further ings unnecessary seem and I would affirm the result reached the trial court. accept even if the court
Moreover, cannot this interpretation, I still no see need to remand for a appear does not new trial. It that additional evidence necessary proper is for a determination of this case. judge’s arising error was one out of his ex- *11 theory planation upon which he reached his con- helpful clusion. Additional evidence would not be resolving presented by the dilemma reading literal language arriving which he used in at his con- need All we is a clusion. clarification of his oral opinion something we ourselves have been called —
upon from to do time to time.