22 Wash. 330 | Wash. | 1900
The opinion of the court was delivered by
On the 19th day of September, 1890, the appellant and respondent entered into a written contract, by the terms of which the appellant agreed to furnish all the necessary materials, and erect and finish for the respondent a court house and jail, for the consideration of $270,000. The contract provided that the work should be performed under the direction and to the satisfaction of Proctor & Dennis, architects, acting as agents of the respondent, who should, “as the work proceeds,” furnish estimates of the value of the work done and material furnished, upon which the contractor was to be paid eighty-five per cent, of the value of same; and, upon the comple
“ 2d. Should it appear that the work hereby intended to be done, or any of the matters relative thereto, are not sufficiently detailed or explained on the said drawings, or in the said specifications, the contractor shall apply to the architects for such further drawings or explanations as may be necessary, and shall conform to the same as part of this contract, so far as they may be consistent with the original drawings, and in event of any doubt or question arising respecting the true meaning of the drawings or specifications, reference shall be made to the architects, whose decision thereon, being just and impartial, shall be final and conclusive. It is mutually understood and agreed that all drawings, plans and specifications are and remain the property of the architects.
“ 3d. Should any alterations be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architects, and the sum herein agreed to be paid for the work according to the original specification shall be increased or diminished as the case may be. In case such valuation is not agreed to, the contractor shall proceed with the alteration, upon the written order of the architects, and the valuation of the work added or omitted shall be referred to three (3) arbitrators (no one of whom shall have been personally connected with the work to which these presents refer), to be appointed as follows: one by each of the parties to this contract, and the third by the two thus chosen; the decision of any two of whom shall be final and binding, and each of the parties hereto shall pay one-half of the expense of such reference.
“ 4th. The contractor shall, within twenty-four hours after receiving written notice from the architects to that effect, proceed to remove from the grounds or building all materials condemned by them, whether worked or unworked, or take down all portions of the work which the architects shall condemn as unsound or improper, or as
“ 6th. The contractor shall and will proceed with the said work, and every part and detail thereof, in a prompt and diligent manner, and shall and will wholly finish the said work according to the said drawings and specifications and this contract, on or before the fifteenth day of September, in the year one thousand eight hundred and ninety-two (provided that possession of the premises be given the contractor, and, lines and levels of the building furnished him, on or before the 15th day of September, in the year one thousand eight hundred and ninety), and in default thereof the contractor shall pay to the owner seventy-five dollars for every day thereafter that the said work shall remain unfinished, as and for liquidated damages.
“ Tth. Should the contractor be obstructed or delayed in the prosecution or completion of the work by the neglect, delay or default of any other contractor; or by any alteration which may he required in the said work; or by any damage which may happen thereto by fire, or by the unusual action of the elements, or otherwise; or by the abandonment of the work by the employees through no default of the contractor, then there shall be an allowance of additional time beyond the date set for the completion of the said work; but no such allowance shall he made unless a claim is presented in writing at the time of such obstruction or delay. The architects shall award and certify the amount of additional time to be allowed; in which case the contractor shall he released from the payment of the stipulated damages for the additional time so certified and no more. The contractor may appeal from such award to arbitrators constituted as provided in Article 3d of this contract.
“ 14th. Tt is further mutually agreed between the parties hereto that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of
On entering in to the contract the appellant proceeded with the work, and on the 8th day of May, 1893, notified the architects that the building was ready for their acceptance. The architects refused, on the ground that the building had not been completed in accordance with the contract, to issue the final certificate. After some controversy, and for the purpose of settling their differences, the appellant and respondent entered into a supplemental agreement, dated the 21st day of June, 1893, which recited that the appellant claimed that he had fully completed his contract; that some question had arisen between the parties as to the construction and interpretation of the plans and specifications, and as to whether or not the building had been completed in accordance therewith; that, notwithstanding the conflicting claims between the parties, the building was in a situation for occupancy and at least partial use by the respondent; “that it is desired by all parties hereto to expedite the settlement of all court house matters, and lessen the expense of all parties to such settlement, and establish the claims of the first party for damages for nonperformance, and those of the second party for extras, and all other claims that may justly arise on behalf of either of said parties under said contract and matters pertaining thereto;” and proceeds in part as follows :
“ Now, therefore, It is agreed by all parties hereto, that the party of the first part shall have the right to use and occupy any and all portions of said court house; that such occupation and use by said party of the first part shall not prevent the party of the second part from completing or finishing any parts or portion of said court house that may
“ It is further distinctly understood and agreed by all parties hereto that such possession and use shall not in any way be an acceptance of such court house, or any part or portion thereof, as being constructed and completed in accordance with the conditions of said contract and the plans and specifications belonging thereto, nor shall the delivery thereof be construed to be a waiver on behalf of the party of the second part of any rights or claims for compensation under said contract or for extras added thereto, but that all matters in dispute between the parties hereto as to the completion or construction in accordance with the contract, and the damages for the failure to so construct and all manner of claims by the party of the first part for non-performance of said contract, or any claims for extra compensation, or any claims that the party of the second part may have under said contract, shall in no way be affected by such occupation and use, but shall be left for further and final settlement hereafter; provided, that for the further expediting the final settlement of all matters, it is agreed that each of the parties hereto furnish the other, within eight days from the date hereof, a full and complete statement of all their claims under said contract, or connected therewith, to wit:
“ The party of the first part shall, through its architects, furnish the party of the second part a full statement of those matters in connection with the said court house claimed by them to be incomplete or not in accordance with the contract, plans and specifications, the particulars thereof, and the damages resulting therefrom, with all other claims on behalf of said first party for non-performance of said contract, together with such extras as are admitted to be allowed by the party of the first part.
“The party of the second part shall furnish to the party of the first part an itemized statement of his claim for extras under said contract, the value thereof, with the authority for performing or furnishing such extras, together with any other claims that he may have under said contract.
“ It is also expressly agreed that all demurrage claimed by the party of the first party against the party of the second part because of the delay in the completion of said building, is waived from time of signing this contract and entering into possession thereunder. And the said party of the second part shall not be concluded from showing that he was entitled to an extension of time in which to complete the said building beyond the time prescribed in the said original contract, because of the fact that the architect has not awarded and certified the amount of additional time which might be allowed under said contract as to any extension of time claimed by the said party of the second part, and he shall have the right to adjudicate such matters in court, the same as if there was no provision in said contract for an appeal from the architects on such questions to arbitrators, as provided in Article 3 of the original contract.”
The respondent answered, putting in issue the material allegations of the complaint; admitting, however, the execution of the contracts, and the execution of the bond by architects Proctor & Dennis; and alleging that the appellant had knowledge of the execution of such bond, prior to the execution of his contract. It alleged affirmatively that it had paid the appellant upon the original contract $250,631.90; that, in compliance with the terms of said contract and supplemental contract, the respondent caused to be made by the architects, Proctor & Dennis, and furnished to appellant, a statement of the matters in connection with the court house claimed by the architects to be
1. It was shown that the detail or working drawings for the building were prepared by the architects after appellant’s bid had been accepted and the contract entered into, and that the appella2it made the estimates upon which his bid was based from the plans and specifications which alone were submitted to him. The appellant contended, and his evidence tended to prove, that these detail drawings were much more elaborate in design than were the original drawings, plans, and specifications; requiring not only a higher and more expensive class of labor, but also a more expensive and better quality of material, and necessitating a longer time in which to do the work. The larger part of appellant’s demand for extras is based upon this claimed difference between the detail drawings and the plans and specifications. When the appellant offered evidence to substantiate his claim, the respondent objected to its admission unless it be first shown that the work was done in pursuance of a written order from the architects, and that a notice of the claim had been made to the architects, in writing, within ten days of the beginning of such work. The trial court, conceiving it not within his power to direct the order of proof, admitted the testimony after
The question presented was before this court in the case of Robertson v. King County, 20 Wash. 259 (55 Pac. 52), and was decided adversely to the conclusion reached by the lower court. In that case Robertson brought an action to recover for labor performed upon a county road, which he alleged was authorized by the board of county commissioners. Ho written contract was entered into be
“ It is not the fault of those who perform services for the county that the county keeps no record of the authorization, and it would be unjust to hold such persons responsible for the negligence of the commissioners or their failure for any reason to keep such record, and what was in fact done may be shown, by evidence aliunde the record, to have been done.”
The decision in that case was announced after the trial of the present ease in the court below, and the principle announced was not, for that reason, followed by the trial court. The learned counsel for the respondent, however, earnestly insisted that the case ought not to be accepted as settled law. Without attempting a review of their argument, or of the many authorities cited, a re-examination of the question has convinced us that the conclusion reached therein is correct in principle, and is supported by the great weight of authority. The rule is general that officers of municipal and quasi-municipal corporations, having power to contract on behalf of their municipalities, unless restricted by statute, may contract with reference to municipal business in any manner lawful for individuals to contract, and such contracts may be either written or oral. It is only when the statute prescribes a particular mode of contracting that the municipality is confined to any particular mode. Arnott v. Spokane, 6 Wash. 442 (33 Pac. 1063); Montgomery County v. Barber, 45 Ala. 237; McCabe v. Fountain County, 46 Ind. 380; Baker v. Johnson County, 33 Iowa, 151; Gillett v. Lyon County, 18 Kan. 410.
Tn the well considered case of Gillett v. Commissioners of Lyon County, 18 Kan. 410, it was said:
“ The defendant also objected to- the introduction of any parol evidence tending to show any contract on the part of the county commissioners authorizing the plaintiff to attend to said, suits. This objection was sustained, and
So, in Jordan v. Osceola County, 59 Iowa, 388 (13 N. W. 344), it was said:
“ A party contracting with the supervisors has no authority or power to cause the contract to be noted in the record; this rests alone with the county officers. The law will not permit prejudice and loss to the party contracting with the supervisors, by reason of the negligent or intentional omission of the supervisors or the county officers to enter the fact of the contract upon the proper record.”
It is further insisted that the proffered testimony was properly rejected for the reason that no offer was made to show a consideration for the modification of the original agreement, or reciprocal advantage accruing to the county by reason thereof, and that the record contains nothing upon which a consideration can be inferred. But no express or independent consideration was necessary. “The contract, when modified by the subsequent oral agreement, is substituted for the contract as originally made, and the original consideration attaches to and supports the modified contract.” Thomas v. Barnes, 156 Mass. 581 (31 N. E. 683); Brown v. Everhard, 52 Wis. 205 (8 N. W. 725); Badders v. Davis, 88 Ala. 367 (6 South. 834).
2. In the answer of the respondent it was averred that the lines and levels for the foundation of the building were not furnished the appellant until eight days after the time they should have been furnished by the terms of the contract, and that, in computing the number of days for which the respondent was entitled to claim liquidated damages, “there should be deducted . . . said eight days.” At the conclusion of the testimony the appellant requested
The case of Reichenbach, v. Sage, 13 Wash. 364 (45 Pac. 354, 52 Am. St. Rep. 51), is cited by respondent as authoritative here. In that case we held it lawful for the parties to a building contract to agree upon a fixed sum per day to be paid as liquidated damages for the time the building shall remain incompleted after a fixed date, where the amount of damages so agreed upon is not excessive or unreasonable, and where the damages, while certain to accrue, may not be readily susceptible of proof under the
This question was before the St. Louis court of appeals in the case of Eldridge v. Fuhr, 59 Mo. App. 46. There, as here, it was contended that the owner was entitled to liquidated damages, notwithstanding he had not complied with his agreement to deliver possession of the premises to the contractor at the time agreed upon. Passing upon this contention, the court said: •
“ The second count in the petition was for damages for failure to deliver the house within the time prescribed in the contract. The court by its instruction directed a verdict for the defendants on this count. In this we think the court was right. This claim for damages is based on the following section of the contract: ‘The contractor shall and will proceed with the said work . . . and shall and will wholly finish the said work ... on or be-for the thirteenth day of June, 1892 (provided that the possession of the premises be given the contractor, and lines and levels furnished him, on or before the ninth day of April, in the year one thousand, eight hundred and ninety-two), and in default thereof the contractor shall pay to the owner two dollars and fifty cents ($2.5.0), for every day thereafter that the said work shall -remain unfinished, as and for liquidated damages.’ The plaintiff admitted that he did not deliver possession of the premises
In Standard Gaslight Co. v. Wood, 9 C. C. A. 362 (61 Fed. 74), an action on a contract, where Wood had agreed to construct for the gas company a certain'structure and complete it “by Eov. 15th, 1891, under penalty of $100 per day, provided you have foundation ready by June 15th,” it was held that the failure of the gas company to have the foundation ready by the required time prevented it from claiming liquidated damages for Wood’s delay in completion of the structure; the court saying:
“The promise to complete on Eovember 15th, and to pay $100 for each day’s default thereafter, expressly hinged upon the gas company’s completion of its part of the work by June 15th. When the condition upon which the promise depended was unperformed through the default of the gas company, the promise to complete by a certain day was no longer obligatory; but, if the contractors entered upon the work, they were under an obligation to finish within a reasonable time. The gas company had, by its default, waived or abandoned the right to call upon the contractors for strict performance as to time, who, if they entered forthwith upon the work, had the right to a reasonable time for performance.”
See, also, Starr v. Gregory Consolidated Min. Co., 6 Mont. 485 (13 Pac. 195); King Iron Bridge & Manufacturing Co. v. St. Louis, 43 Fed. 168 (10 L. R. A. 826); Ortmann v. First National Bank, 49 Mich. 56 (12 N. W. 901); Dannat v. Fuller, 120 N. Y. 554 (24 N. E. 815); Mansfield v. Railroad Co., 102 N. Y. 205 (6 N. E. 386).
3. At the conclusion of appellant’s case in chief, the court withdrew from the consideration of the jury all of his testimony relating to extra material and labor alleged to have been furnished, except such as the answer admitted, and afterwards gave to the jury upon that subject the following instructions:
“And you are further instructed, as a matter of law, that, upon all questions as to the true meaning of drawings and specifications, the amount to be allowed plaintiff for extras or alterations made, that the decision of the architects, Proctor & Dennis, is final and conclusive, unless it shall be shown that said decision is unjust and partial. And if you believe from the evidence that said architects considered all claims made to them in writing for extras, and that their decision upon such claims is just and impartial, your verdict upon these claims should be for the defendant. . . . ”
“And you are further instructed that the finding and decision of said Proctor & Dennis upon all matters referred to them during the construction of said building, and with reference thereto, are presumed to be just and impartial until the contrary is shown; and that the burden of proof that any decision of said architects is unjust or partial, is upon the party assailing such decision or alleging it to be unjust or partial, and that unless you believe from the evidence such party has, by a fair preponderance of evidence upon that matter, established that such decision was unjust or partial, your verdict thereon should be in siipport of such decision.”
In charging the jury that the decisions of the architects, being just and impartial, were final and conclusive as to the amount to be allowed the contractor for extras and alterations, the trial court misconstrued the contract. The
It was equally erroneous to charge the jury that the contractor could not claim for extra work not accepted by the architects, unless it was done in pursuance of a written order of the architects. The provision relating to written orders is found in the third clause of the contract. By this clause the county was empowered to make, from time to time, as the work progressed, such alterations in the plan of the work as it might desire. When such changes were ordered made, it became the duty of the architects to place a valuation upon the work added or omitted, when, if the contractor agreed to the valuation, the original contract price was to be increased or diminished in accordance therewith as the case might require; but, if the contractor did not agree to such valuation, he was required to proceed with the work on the written order of the architects, when the question of value was to be submitted to arbitrators, whose award was to stand in the place of the architects’ valuation. A written order was thus the contractor’s authority for making the desired alteration, where the value of the same was not agreed to, and such an order was neither authorized nor necessary where the cost of the change was agreed to in advance of the work. It is evi
It follows, from what we have said concerning the right of the appellant to show by parol a waiver by the respondent of the conditions of the ninth clause of the contract, that the trial court erred in withdrawing from the consideration of the jury all the evidence of appellant relating to extras claimed by him, other than such as were admitted by the answer. This evidence, under the rule we have announced, should have been submitted to the jury along with the evidence of the waiver, under an instruction to the effect that, if the jury found a waiver, they were entitled to consider the other evidence, and make such findings thereon as, in their judgment, • the facts warranted. But, aside from this, we think the ruling was erroneous. As we have said, the larger part of the appellant’s demand for extras arose out of what he claimed to be a difference between the original drawings and specifications and the subsequent detail or working drawings prepared by the Architects, which the county required him to follow. While the question was one respecting the true meaning of the drawings and specifications, on which the decisions of the architects, being just and impartial, were final and conclusive, yet the appellant had the right to have submitted to the jury, under the allegations of his complaint, the question whether or not the architects’ decisions thereon were just and impartial; provided he had not waived his right to claim an extra for any additional work occasioned thereby, by failing to comply with the condition contained
In this connection the appellant argues that by the supplemental agreement the respondent waived its right to claim damages for any defect of construction not contained in the architects’ statement of defects filed in pursuance thereof. We think differently. By taking possession, in the language of the supplemental agreement, the respondent “accepted the said building subject to its right to claim damages for any work done or materials used in said building claimed by them [it] not to be in accordance with the original plans and specifications, and any other claims for non-performance set. forth in such statement.” This did not confine the county to defects pointed out in the architect’s statement. On the contrary, it expressly reserved the right to insist upon every defect. By this agreement only three things were waived, viz., the final certificate of the architects, the right of the county to claim demurrage after a certain date, and its right to insist that the contractor was concluded from showing that he was entitled to an extension of time in which to complete the building, because the architects had not awarded and certified the amount of such additional time, and it was not a waiver of the right of the county to insist that the contractor show that he had made a claim in writing to the
The court gave this further instruction:
“You are further instructed that the plaintiff in this case claims that the said architects, Proctor & Dennis, who had been selected by plaintiff and defendant to have the direction and supervision of the construction of said building, and to -whom all matters of difference should be referred, and whose decision thereon, if just and impartial, should be final and conclusive, were prejudiced and biased against plaintiff and in favor of defendant; and that said architects were so prejudiced and biased by reason of their having executed and delivered to the county of Pierce, the defendant herein, prior to the commencement of said work, a bond in the sum of $25,000, conditioned that they, the said architects, would keep the cost of the building below the sum of $300,000. You are instructed upon this matter that the giving of a bond of the kind and character referred to, would not be evidence of bias or prejudice upon the part of said architects; but you are at liberty to consider the giving of said bond as a circumstance in weighing the testimony of said architects as witnesses, or in arriving at your decision touching any matter referred to them.”
This was error. If the fact that such a bond had been given was unknown to the contractor at the time he entered into the contract, then the proviso for referring disputed matters to the arbitration of the architects was annulled, so .far as he was concerned. It is an ancient maxim, applicable to arbitrators as well as judges of courts, that no man ought to be a judge in his own cause. The cause of the county became, by reason of this bond, the cause of the architects, and the liability assumed by them made it to their interest to decide every question affecting the cost of the building against the claim of the contractor. Bias and prejudice will always be implied where such conditions exist; and it was not necessary for the contractor to show
4. The clause in the specifications relating to the kind of stone to be used in the construction of the building is as follows:
“ The exterior walls of the entire building to be of stone, as shown on the plans. All the trimmings, dressings, carved, and moulded work to be of the best, selected Tenino blue stone; all other stone to be of the best, selected Wilkeson stone, free from all defects, laid up in coursed range work. Ho imperfect stone will be allowed in the building.”
The appellant alleged in his complaint, and offered evidence tending to prove, that he had been greatly delayed in the construction of the building because the county, through its architects, had refused for a long time to permit him to use Wilkeson stone procured from any other quarry than the one owned by Mitchell & Smith, and that, by reason thereof, he was damaged in the sum of twenty thousand dollars. It developed as the trial progressed that at the time the contract was entered into only the Mitchell & Smith quarry was opened, that contained stone known as “Wilkeson stone,” and the trial court thereupon refused to permit the appellant to make further proof of this alie
5. The trial court should have admitted in evidence the letter from the county commissioners to the contractor, dated July 12, 1893. It is true, the letter recites, “that the board of county commissioners are ready to settle with you for the construction of the new Pierce county court house upon the basis of” the sum named therein, but this recital does not bear upon its face conclusive evidence that the offer of the sum mentioned was made solely for the purpose of effecting a compromise, nor does it preclude the contention of the appellant that it was an admission that the sum named was due him. While the general rule is that no offer made by one party by way of compromise can be given in evidence by the other as an admission of liability, yet whether the offer was made on the faith of a compromise is usually one of fact for the jury. The same rule governs the court in determining this that governs him in determining- any other question of fact. There must be no substantial dispute as to what the facts are.
The other questions raised require no separate consideration.
The judgment of the lower court is reversed, and the cause, is remanded for a new trial in accordance with this opinion.