10 Wash. 339 | Wash. | 1894
The opinion of the court was delivered by
David Gilmore and William H. Kirkman, in 1889, caused plans and specifications to be prepared for a building to be erected on their joint property in the city of Seattle, and thereupon invited bids from contractors for the erection of the building. Two bids were received; one, that of respondent, for $98,000, and another, that of a third party for $96,840. Gilmore and Kirkman desired to favor respondent, and proposed that they would accept his bid, but that, as they did not wish to appear to reflect on the lower bidder, in any way, they would make their principal contract for the building, which was to be in writing, at $96,000, and give respondent a separate obligation for $2,000. Thus far the transaction occurred between Gilmore and respondent only, Kirkman residing in Walla Walla and not being present. Gilmore had full authority from Kirkman to make any contract he saw fit. Within a day or two after the agreement as to the bid the architect who had prepared the plans and specifications filled up one of his blank contracts, in duplicate, with the names of respondent and John Collins, as parties of the first part, and Gilmore and Kirkman
This writing contained the usual articles found in such agreements, twelve in number, each set forth with much detail. The date for the completion of the building was fixed at October 10, 1889, for the lower portion, and at November 10, for the upper portion, with a provision for demurrage at the rate of $25 per day for each uncompleted portion beyond the dates named. Provisions were made that the architect should be the sole arbiter of certain described matters, should they come into dispute, and in case of any other dispute it should be settled by another method of arbitration provided for.
Extra work was to be settled for as determined by the architect, if satisfactory to both parties, but otherwise by the second method of arbitration. The contractor was required to procure a builder’s insurance policy for the benefit of Gilmore and Kirkman as security for such money as they might advance. Payments were to be made every two weeks after the commencement of work, to the extent of 90 per cent, of the work performed, upon architect’s certificates:
In February, 1891, respondent commenced this action, alleging a contract entered into about March 1, 1889, between himself and Gilmore and Kirkman for the erection of the building, in accordance with the plans and specifications prepared by the architect named in the writing referred to for the sum of $98,000; the facts constituting his claim for extra work, in the sum of $6,653 ; and that he had been paid
The answer pleaded the writing referred to, as the only contract ever entered into between the parties; the facts constituting the opposing claims of the defendants as above noted ; and the alleged final settlement as an accord and satisfaction. There was also an allegation that the signing of the writing by Gilmore was done by him and was accepted by plaintiff as a sufficient execution of the contract, that Gilmore was duly authorized in that behalf by Kirkman, who adopted the instrument, and that all parties acted upon it as the contract of Gilmore and Kirkman.
The reply was a general denial of the new matter in the answer, except that there was an admission that $259.50 should be credited for uncompleted work.
It will thus be seen that the theory of the plaintiff’s action was an express contract for the erection of the building for the sum of $98,000, ignoring the written agreement (because it was not signed by Kirkman) and the alleged final settlement. The defense maintained the integrity of the written contract, either by sufficient execution, or through subsequent assent by the conduct of the parties, and the finality of the settlement. Judgment was for the full amount demanded in the complaint.
The errors alleged relate wholly to the denial of the motion for a non-suit, and the motion for a new trial on the ground that the verdict was against the law and the evidence, and to the matter of charging the jury,
1. The respondent having rejected the writing as a contract, his first duty in the case was to establish in his favor an express contract binding upon Gilmore and Kirkman; failing in this the action must result against him, since he could not be permitted to recover upon quantum meruit, he having neither pleaded nor given evidence in support of such a cause of action. His own, testimony attempted to limit all the negotiations for the erection of the building, outside of the signing of the writing, to his putting in a bid, and being
Upon these facts we think it impossible to conclude otherwise than that the utmost that can be said of the bid and all other matters preceding the signing, is that they constituted an agreement for a contract and not a contract for the erection of the building. But if this be not so, then, inasmuch as respondent asserts that he had a contract, some of whose terms were left to be stated in a writing, this paper
The verdict of the jury, from its amount, was plainly based upon the assumption that the terms of the agreement consisted of nothing but the respondent’s bid, and the oral acceptance of it, which was against the clear weight of evidence furnished by the respondent himself, as well as against the numerous appropriate instructions of the court, and it should have been promptly set aside, and a new trial granted for that reason. It was not within the province of the jury to ignore admitted facts and base its finding upon the mere claim of the respondent set up for the first time after the full execution of his work. We are of opinion, however, that the case was not one which called for the granting of a non-suit at the close of plaintiff’s evidence, as the most, and most important, of the respondent’s admissions were' made upon the rebuttal, after the writing had been admitted in evidence.
2. The particulars concerning the alleged settlement have been stated as far as the undisputed facts go. But the
These facts, under the authorities, justified the court in submitting to the jury, by its third instruction, the question whether Gilmore gave the check and the respondent accepted it as a full settlement of their matters of difference, or not. Frick v. Algeier, 87 Ind. 255; Fire Ins. Ass'n. v. Wickham, 141 U. S. 564 (12 Sup. Ct. 84); Hart v. Boller, 15 Serg. & R. 162 (16 Am. Dec. 536); Stone v. Miller, 16 Pa. St. 450; Hardman v. Bellhouse, 9 Mees. & W. 596.
Upon the whole case we are of the opinion that the material questions which should have been submitted to the jury, under the evidence, were, first: Was there an agreement to make a full settlement ? second : If there was no settlement, what, if any, demurrage at the contract rates, ought to be charged to the respondent? Concerning the extra work there should have been no submission, since the evidence clearly showed a reference of that matter to the architect
The judgment is reversed and remanded for a new trial in accordance with this opinion.
Dunbar, C. J., and Hoyt, and Anders, JJ., concur.
Scott, J., concurs in the result.