71 Wash. 15 | Wash. | 1912
Lead Opinion
Application for a writ of mandamus, brought by W. J. Murphy, relator, against the mayor and commissioners of the city of Chehalis, to compel the levy of a special assessment upon property in a sewer district, sufficient to pay relator $53,026.81, claimed to be due him for the construction of a sewer system. A demurrer to the answer was sustained, and judgment was entered awarding the writ. At the hearing and argument on the demurrer, defendants asked permission to amend their answer. Relator objected to any amendment, but the trial judge indicated that he would pass upon the application when he ruled upon the demurrer. The demurrer was then taken under advisement, with permission to the parties to present additional authorities. On February 10, 1912, the trial judge signed a judgment awarding the writ, without passing upon the application to amend. This judgment was entered on February 13, 1912. On February 19, 1912, the defendants moved the court to vacate the judgment and permit the filing of their proposed amended answer. This motion, to support which affidavits were filed by defendants’ counsel, was denied. The defendants have appealed from the final judgment, and also from the subsequent order refusing to vacate the same, or to permit the filing of the amended answer.
The cause was decided upon the pleadings, which are too voluminous to be stated in an opinion of reasonable length. The relator’s affidavit making application for the writ, in
Chehalis, Wash., Oct. 30, 1911.
To the City Council,
Chehalis, Wash.
Sirs:
W. J. Murphy, contractor for the construction of the sanitary sewers in Local Improvement Sewer District number one, has completed the work according to plans and specifications, and I have accepted the same.
Assessment roll attached hereto.
Respectfully,
W. H. Allen,
City Engineer;
The appellants by answer admitted the passage of the ordinance, the execution of the contract and the ádoption of the plans and specifications, and denied other allegations of the affidavit. For affirmative defense, they, in substance, alleged, that relator had neither constructed nor completed the sewer in accordance with the terms of the contract; that the engineer had no authority to give the certificate approving the work, and stating the amount due relator; that the engineer’s action in so doing was a legal fraud on the city and the property owners within the district; that it would require a vast amount of work and the expenditure of $30,000 to complete the sewer in accordance with the terms of the contract; that in its present condition the sewer is useless; that it will be of no benefit to the property owners within the district, and that no assessment based upon benefits can be made. The answer with much detail sets forth particular instances in which appellants contended the relator has failed to complete the contract. It in effect admits that the work was done under the superintendence of the engineer, who is shown to have been employed by the city. While the answer alleges that the action of the engineer, when he gave the final certificate, was a legal fraud upon the city, it utterly fails to allege that relator was a party to any fraud, that he was guilty of any collusion with the engineer, or that he did not
Appellants’ first contention is that the relator cannot maintain this action in which he demands a writ of mandamus, but that his cause of action, if any, is one for damages arising from a breach of contract. We find no merit in this contention. We have repeatedly held that a proceeding of this character is a civil action, in which the relator as plaintiff can be afforded the relief to which he may be entitled. State ex rel. Brown v. McQuade, 36 Wash. 579, 79 Pac. 207; State ex rel. Barber Asphalt Pan. Co. v. Seattle, 42 Wash. 370, 85 Pac. 11; State ex rel. Gillette v. Clausen, 44 Wash. 437, 87 Pac. 498; State ex rel. Howe v. Kendall, 44 Wash. 542, 87 Pac. 821; State ex rel. Barto v. Board of Drainage Commissioners, 46 Wash. 474, 90 Pac. 660.
Appellants next contend that the trial court erred in refusing to vacate the judgment and grant them permission to file their proposed amended answer. The granting or refusal of an application to amend is within the sound discretion of the trial judge, and ordinarily his action will not be disturbed unless an abuse of discretion be shown. In this case we are satisfied from the record before us that the trial judge intended to refuse leave to amend the answer at the time he passed upon appellants’ demurrer and entered the final judgment, but that by inadvertence he neglected to do so, or to enter any order to that effect. In any event, the final judgment, if correct, will not be vacated for the purpose of granting leave to amend, unless the proposed amended answer discloses additional facts or defenses material to the action, not already pleaded in the original answer. We have examined the proposed amended answer, a copy of which is in the record, and conclude that, while it does to some extent elaborate the original answer, it in reality states no additional defenses, nor does it add to the sufficiency of any de
The vital and controlling question before us is whether the answer stated a defense to relator’s affidavit. The relator contends it does not, as it in effect concedes the fact to be that the contract as performed was performed under the immediate supervision and direction of the engineer employed by the city, that the engineer has approved the work, and that he gave his certificate of approval and of the amount due. Relator therefore insists that appellants are now bound by the engineer’s certificate and action, and are es-topped from denying the completion of the sewer in accordance with the terms of the contract, without pleading fraud or collusion on relator’s part, which they have failed to plead. On the other hand, appellants contend, that the engineer had no authority to make any certificate which would bind the city; that even though such authority be conceded, yet his acceptance of the work under the facts pleaded will not preclude the city from claiming the work was not done conform-ably to the contract. To sustain these several positions, relator and appellants cite numerous cases from other courts which we do not find it necessary to review. The facts in the cases cited were largely controlling in reaching the final judgments which were entered. We think the law as heretofore announced by this court sustains relator’s position, and compels us to affirm the judgment.
The affidavit and answer are copious and of unusual length. It clearly appears from them both, that Allen was employed
“Whenever in the opinion of the engineer, the contract is fully performed on the part of the contractor, the engineer will proceed with all due diligence to measure up the work and will make out the final estimates and certify them to the city council and to the contractor.....
“Upon receipt of the engineer’s estimate and report and a sworn statement from the contractor to the effect that all bills for labor and material against the improvement have been paid, the city council will proceed with the acceptance of and payment for the work as provided by the ordinance and contract under which this work is to be done.”
These and many other conditions incorporated in the contract, the execution of which is admitted,, establish the fact that the engineer, as the authorized representative of the city, was with its approval in full and complete charge and control of the work during the entire period of construction. It is apparent from the terms of the admitted contract that he not only had authority to require the contractor to remove and reconstruct imperfect work, but that he also stood in the position of an arbitrator between the contractor and the city, with power at all times to determine whether the work was progressing satisfactorily and being properly done. This being true, it would be an injustice to require the contractor to now remove and renew the work, unless it be first shown that he had been guilty of some collusion or fraud. There is no contention that the city, at any time prior to the al
“It is well settled that, in the absence of fraud, an acceptance of a public improvement by the governing body or by the party authorized by the charter, ordinance or contract to accept it, is conclusive upon both parties. 1 Abbott, Municipal Corporations, § 288; Lake Erie & W. R. Co. v. Walters, 13 Ind. App. 275, 41 N. E. 465; Whitefield v. Hippie, 11 Ky. Law 386, 12 S. W. 150; Atkinson v. Davenport, 117 Iowa 687, 84 N. W. 689; Central Bitulithic Paving Co. v. Mt. Clemens, 143 Mich. 259, 106 N. W. 888; City Street Imp. Co. v. Marysville, 155 Cal. 419, 101 Pac. 308, 23 L. R. A. (N. S.) 317. The respondent had the right and power to waive a strict compliance with the terms of the contract. Lake Erie A W. R. Co. v. Walters, supra; Weston v. Syracuse, 158 N. Y. 274, 53 N. E. 12, 70 Am. St. 472, 43 L. R. A. 678; 28 Cyc. 1054k.
“The respondent has cited De Mattos v. Jordan, 20 Wash. 315, 55 Pac. 118, and Atwood v. Smith, 64 Wash. 470, 117 Pac. 393. In the De Mattos case the single question involved was whether an oral approval of the work by the architect was sufficient. It was held that the contract contemplated that his written certificate should be obtained prior to the commencement of the action. In the Atwood case it was held that the change made in the work by the engineer was so radical that it was in excess of his powers .
“We have uniformly held that it is the duty of an architect or an engineer who has been selected by the parties to
Here the engineer did not refuse the certificate, but gave it as he was authorized to do. If there were any errors or wrongs committed in the performance of the contract, as appellants now allege, they were committed by the engineer, or at least with his consent. He was the authorized representative of the city and was permitted to remain in control until the alleged completion of the contract. In the absence of any allegation of fraud or collusion upon relator’s part, we hold the city is bound by his acts. We might further suggest that, upon the proposed amended answer, we would reach the same conclusion.
The judgment is affirmed.
Mount, C. J., Morris, Ellis, Parker, and Gose, JJ., concur.
Dissenting Opinion
(dissenting) — I think the refusal to grant an amendment was an abuse of discretion, this being a case of public interest. I therefore dissent.
Fullerton, J., concurs with Chadwick, J.