72 P. 738 | Or. | 1903
after stating the facts in the foregoing terms, delivered the opinion.
It is contended by plaintiff’s counsel that their client
The rule in this country is quite general that, in the absence of any stipulation of the parties regulating the matter, the duty of giving notice of the time and place of hearing upon the submission of a controversy devolves upon the arbitrators, but the manner of giving it, so long as it is reasonably adequate to accomplish the purpose for which it was designed, rests largely in their discretion : Morse, Arb. p. 118. In Wood v. Helme, 14 R. I. 325, a dispute concerning a building contract was submitted to two arbitrators under a stipulation that, if they could not agree, they were to choose a third, the decision of any two of them to be final. A disagreement having occurred, a third arbitrator was chosen, who, in company with one of the others, visited the premises, and heard ex parte statements from the defendant’s brother concerning the matter submitted, in the absence of the plaintiffs, and without notice to them. An award having been made, it was set aside as void, the court, in speaking of the duty of arbitrators under a submission silent in respect to notice, saying: “Without question it was the duty of the arbitrators, under the submission in this case to give due notice to the parties
Having found that the court erred in dismissing the suit, there remains to be ascertained the amounts due the plaintiff for the extra labor and material necessitated by a change in the plans and the credits to which the defendant is justly entitled for causing the rock to be furnished for the crib, the value of the material saved by reducing the size of the dam, and the damage, if any, that it sustained in consequence of the manner of driving the sheet piling. It will be remembered that the bill presented by plaintiff to the defendant shows that the extra lumber used was 33,024 feet and 876 feet, at $15 and $10, respectively, per M, amounting to $503.76, an undervaluation of 36 cents. The quantity specified in the complaint, as evidenced by the notice of lien, is stated to be 16,936 feet, at $15 per M, which sum is made up as follows: $10 per M for the lumber, $3.50 per M for the labor, and $1.50 per M for the nails and drift holts used in putting the material in place, or $254.04; 15,360 feet at $16.75 per M, this amount being $11.35 per M for the lumber, $3.50 per M for the labor employed, and $1.90 per M for the nails and
The specifications prescribing the kind of material to be furnished and the character of work to be performed in constructing the dam were in typewriting, one clause of which is as follows: “Planking and sheathing to he tamarack, two thicknesses, 2x12, laid to break joints on the face ribs of the dam cribs and apron and spiked thereto.” A punctuation mark in the language quoted is made with graphite, and the plaintiff, referring thereto, says: “The comma in pencil has been put in between the two words ‘dam’ and ‘cribs’ since these specifications left my hands, if these are the same ones.” E. J. Stuart, as defendant’s witness, speaking of this clause, and also referring to plaintiff’s bill, as rendered, for 1,400 feet and 1,650 feet of lxl2-inch lumber used on the north and south piers of the dam, respectively, for which a charge of $15 per M is made, says that this material was not extra, and plaintiff was required to furnish it at his own expense, under the terms of the contract. The testimony of this witness is
It will be remembered that plaintiff seeks to recover $15 per M for 16,936 feet, $16.75 per M for 15,360 feet, and $10 per M for 1,604 feet of extra lumber furnished, the prices respectively demanded therefor including the cost of the lumber, nails, and drift bolts, and also the value of the labor employed in placing the material in the structure. Stuart and Scranton estimate the reasonable value of the lumber so used, including nails, drift bolts, and labor, at $14 per M. The plaintiff, testifying in relation to the charge of $16.75 per M, says that in changing the pier from 4. to 14 feet in width he was obliged to use 16-foot timbers which he had ordered, and could not secure material therefor that was of the proper length, thereby causing a waste, for which he made the extra charge of $1.35 per M. We think the preponderance of the testimony shows that the reasonable value of the material furnished was only $14 per M, including nails, drift bolts, and labor, and this sum will be awarded for 32,296 feet, and $10 per M, the sum demanded, for 1,600, an error of 4 feet having been made in the computation as set forth in the complaint. The waste claimed, as we understand the matter, is not so much as stated. There are five cross-
It will be remembered that the sum demanded for driving the piling is $80. We think the weight of the testimony shows that the reasonable value of this work was only $56, which sum will be allowed therefor. For the extra drift bolts furnished, $18.75, and the value of the extra labor employed, $353.50, and for sizing the timber for the flood gate, $3, will be allowed on said items respectively. The defendant is credited with 434 cubic yards of stone placed in a pier at 50 cents per cubic yard, or $217, and plaintiff, in the complaint, makes a counter charge of 120 cubic yards at the same price, or $60. The defendant should only be credited with filling a pier 64 feet long, 4 feet wide, and 24 feet high, the dimensions of the one agreed to be filled by plaintiff, or 314 yards. We think the weight of the testimony shows that the reasonable value of this work was 75°cents per cubic yard, which sum will be awarded therefor.
The contract required plaintiff to drive in the bed of the river a row of sheet piling, the top part of which was to be spiked to the dam, and it is alleged in the answer that this work was so carelessly done that defendants were damaged thereby in the sum of $250. The witness J. D. McKennon, in answer to the question as to how much damage defendant sustained in this respect, testifies as follows : “That is a hard question to answer. We cannot really estimate the damage that that has done us by reason of their not being driven according to the plans and specifications. It has cost a great deal of money to stop the leaking, which is certainly caused by reason of the fact that the piles are not driven close together. It does not
It is stated in defendants’ brief, and not controverted at the trial, that plaintiff secured from the county clerk the sum of $1,136.16, deposited for him. This being so, the account will be recast as follows :
Contract price of dam_____________________________$ 6,300 00
To 32,296 ft. extra lumber (a) $14 W M'-------------- 452 14
1,600 ft. extra lumber (a) $10 ip M--------------- 16 00
Waste________________-________________________ 24 00
Labor_________________________________________ 153 50
Drift bolts_____________________________________ 18 75
Driving piling--------------------------------- 56 00
Sizing gate_____________________________________ 3 00
Total________________________________________$ 7,023 39
By 314 cu. yds. stone (a) 75c IP cu. yd----------------$ 235 50
10 cu. yds. (a) 80c_______________________________ 8 00
Lumber saved, 4,916 feet, @ $14 F M----------- 68 82
Cash paid_________________.--------------------- 5,500 00
Cash deposited_________________________________ 1,136 16
Balance due____________________________________ 74 91
Total________________________________________$ 7,023 39
This shows that plaintiff is entitled to recover the sum of $74.91, and the further sum of $1.50 which the testimony shows he paid for filing the lien. The decree of the court below will therefore be reversed, and one entered here foreclosing the lien for the sum so found to he due. Reversed.