22 Wash. 139 | Wash. | 1900
The opinion of the court was delivered by
In the fall of 1898 the appellant, The Snake River Valley Railroad Company, was the owner of a right-of-way, extending north from Wallula Junction, in Walla Walla county, to Snake river, and thence easterly along the river to the eastern boundary line of that county, and was engaged in constructing a railroad thereon. The railroad company let the contract for the construction work to the appellant, J. A. Caughren, who sub-let to Roman & Swanson, who, in turn, on the 26th day of January, 1899, entered into a contract with the respondents by the terms of which they undertook and agreed to do the excavating for some three hundred feet, being the part between stations 2482 and 2485. The engineer of the company had set stakes on the ground, showing the amount of the excavation, and the respondents undertook to excavate to the stakes set at seven cents per cubic yard for all material removed. After this was done, the engineer discovered that the slope as originally calculated was not sufficient to protect the roadbed, and thereupon changed the same, setting back the stakes, necessitating more excavation. The respondents thereupon excavated to the stakes as reset, when the engineer made a second change, setting the stakes • still further back, requiring further excavation. ITp to this time the contract between Roman & Swanson and the respondents had been oral, but after the second change in the stakes the respondents insisted upon a writing, when the following memorandum was drawn up and signed:
“ That said Roman & Swanson, parties of the first part, agree to pay to Mike Olson & Co., parties of the second part, ten (10) cents per cubic yard and free tools and horse without teamster, for three thousand (3000) cubic yards
The respondents then proceeded with the work, and, after excavating to the stakes as set when the written contract was made, called for the “second grade stakes,” which were necessary to define the depth of the cut alongside the roadbed over which the track is laid. The engineer concluded that the slopes of the banks as made were not yet sufficient, and changed the stakes for the third time. The respondents refused to excavate further, and demanded of the engineer an estimate of the amount of the work already performed, which the engineer refused to give them. They then demanded pay from Roman & Swanson for the amount excavated at the contract price, basing their charge upon estimates made by themselves. On the refusal of Roman & Swanson to pay them they filed a lien, and began this action to foreclose the same. The court found for the respondents and entered a decree of foreclosure, from which this appeal is taken.
At the close of respondents’ testimony the appellants moved for a non-suit on the ground that the respondents were seeking to recover on another and different cause of action than the one set out in the complaint This motion was denied, and the ruling of the court thereon is the first error assigned. The argument in support of the objection is that the complaint sets out a specific contract and alleges a full and complete performance of the same, while the proofs show a part performance only, and an excuse for the non-performance of the contract in its entirety; and that this constitutes such a variance between the pleadings and proofs as to preclude a recovery by the respondents.
“Ho variance between the allegation in a pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits,” and,
“ Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as shall be just.”
By § 4950 it is provided that, when the variance is not material, the fact may be found according to the evidence, without requiring the pleadings to be amended. The object of these provisions of the Code was to correct the harshness of the common law rules relating to variance. They were intended to prevent a suitor having a meritorious cause of action from being thrown out of court, or a defendant having a valid defense from presenting that defense, for mistakes in his pleadings' which do not affect the merits of the controversy, or prejudice the rights of his adversary. Hence, under the rule of the Code, it avails a litigant nothing to show a variance between his adversary’s pleadings and proofs without showing a resulting injury. It must appear that he was, to repeat the language of the Code, “misled ... to his prejudice, in maintaining his action or defense upon the merits.” Further, it will be noticed the statute requires the showing of prejudice to be made to the trial court, whose duty it then becomes to determine its sufficiency. If the court finds, upon such showing, that the adverse ’party has been misled to his prejudice by the variance — -finds that the variance is material — it may order the pleadings amended
The case of Distler v. Dabney, 3 Wash. 200 (28 Pac. 335), and kindred cases from this court holding the same doctrine, are cited in support of the appellants’ contention. A most casual examination of these cases, we think, will show that the court had under discussion a departure in pleading, and a failure of proof, rather than a variance between the pleadings and proofs, and that they are not in point to the latter question. Murray v. Meade, 5 Wash. 693 (32 Pac. 180); Davis v. Hinchcliffe, 7 Wash. 199 (34 Pac. 915).
It is next insisted that the proofs failed to show- a compliance with the contract on the part of the respondents, and that a non-suit should have been granted for that reason. The appellants argue that the language of the contract, which requires the respondents to finish the cut “according to stakes set by the engineer, and to his satisfaction,” when interpreted in the light of the surrounding circumstances, must necessarily mean that the respondents were required to excavate, not only to the stakes then set, but to any stakes the engineer should thereafter set, until
It is also contended, in support of this branch of the case, that the admission of the respondents to the effect that they had not excavated the ditch alongside of the roadbed, precluded their right to recover for the work which they did perform. While it was admitted they did not excavate the ditches, it was shown that they did not do so because of the refusal of the engineer to furnish them with necessary levels, without which the work could not be done. Even if it be admitted that the contract called for the performance of this work, the failure to furnish the levels was a sufficient excuse for its nonperformance.
The further contention, that the work was not done to the satisfaction of the engineer, is not in accord with the evidence. The engineer made no objection to the manner in which the work was done. His dissatisfaction was with the depth and slope of the cut after the appellants had excavated to the amount of their contract. But this was no fault of the respondents; if fault lay anywhere, it was with the engineer. The respondents having performed their work in accordance with the contract, dissatisfaction of the engineer with his own work would not preclude them from recovering.
The judgment of the lower court is affirmed.
G-okdon, O. J., and Dunbab and Reavis, JJ., concur.