86 Wash. 334 | Wash. | 1915
Action by Malcolm McDougall and R. J. Cameron against Angus V. McDonald and D. V. McDonald, co-partners as McDonald Brothers, to obtain an accounting and recover one-third of the profits earned in the performance of two construction contracts. From a judgment in plaintiffs’ favor, the defendants have appealed.
Respondents claim they are entitled to one-third of the profits earned in the performance of two construction contracts, which they had assisted in financing and which had been performed by appellants. The trial judge, in substance, found that, in August, 1910, respondent Malcolm McDougall, acting on behalf of himself and on behalf of respondent R. J. Cameron, orally agreed with appellant D. V. McDonald, acting on behalf of himself and on behalf of appellant Angus Y. McDonald, that respondents were to furnish the necessary funds to assist in financing and performing a certain contract which McDonald Brothers then had with the Northern Construction Company, Ltd., for the construction of a portion of the Canadian Northern Pacific Railway, in British Columbia; that respondents were to use their influence and efforts towards securing other construction contracts, and were to assist in financing the same; that all such contracts were to be carried on as joint ventures of all the parties; that appellants were to use their horses and equipment and give their individual time and efforts in prosecuting and performing the construction contracts without charge to respondents, and that the profits earned were to be divided as follows: To the respondents, one-third jointly; to Angus V. McDonald, one-third, and to D. V. McDonald, one-third.
The trial judge further found that respondents advanced $10,000, which was received and used by appellants in the performance of the first contract, known as the Chilliwack contract; that thereafter an additional contract, known as the Kamloops job, was obtained on the same railway; that, for the purpose of financing it, respondents and D. V. McDon
The original complaint was based upon the first construction contract obtained by appellants, known as the Chilliwack contract. The Kamloops contract, which had been secured later, was not pleaded. Respondents had advanced $10,000 in the performance of the first contract, and had executed the written guaranty or letter of credit for the purpose of financing the second. Funds thus advanced and obtained on their credit had been used on the two contracts, which had been fully performed. Prior to the trial, respondents notified appellants that an application would be made to amend the complaint. This amendment, which was allowed, was made for the purpose of pleading both construction contracts and all profits earned. Appellants claimed no surprise and made no application for a continuance, but proceeded to trial. The evidence introduced tended to support the allegations of the complaint, as amended, and we are unable to conclude that any material departure or variance in the
Appellants further contend that the oral contract or agreement upon which this action is predicated was void, because it was uncertain and indefinite in that it failed to specify the amount of financial aid respondents were to furnish, or the nature of assistance which they were to give in securing additional contracts; that no time was fixed for the continuance of the agreement, and that no measure of damages was adopted in the event of its breach. If this were an action to enforce a specific performance, or to recover damages for a failure to perform the contract, there might be some merit in appellants’ contention. The pleadings and evidence show, that the contract has been fully performed; that the construction work was completed; that final payments have been made to appellants by the- railway company; that respondents have fully performed on their part by furnishing needed financial aid and credit, and that the contract is fully executed between respondents and appellants, save and except final division of the profits. Appellants have accepted the benefits of the contract and have used respondents’ money and credit, and nothing further remains for respondents to do. Appellants at this time are in no position to refuse a division of profits on the ground of any uncertainty in their agreement with respondents. Full performance of the contract has made it certain in every respect in which, as an executory contract, it might have been regarded as uncertain. Appellants cannot be permitted to accept the benefits of this contract and then refuse to bear its burdens.
The remaining assignments of error go to the contention that the findings of the trial judge were not supported by the evidence, and that error was committed in the exclusion of evidence oifered by appellants. The controlling issue of fact was whether a contract between respondents and appellants was made, entered into, and performed as contended by respondents. Upon this issue the evidence was conflicting,
Contention is made, thát D. V. McDonald had no authority to represent his partner, Angus V. McDonald, in making the contract with respondents; that Angus V. McDonald is not bound by his acts, and that as a result no contract between respondents and McDonald Brothers has been proven. The evidence clearly shows that Angus Y. McDonald knew of the advances made by respondents; that he knowingly participated in the use of these funds in financing the first construction contract; that he knew of and consented to the use of the letter of credit in financing the second contract, and that he never questioned the agreement until the completion of the construction contracts.. Our conclusion is that he had full knowledge of the agreement between respondents and ap
The judgment is affirmed.
Fullerton, Ellis, Main, and Mount, JJ., concur.