89 Wash. 293 | Wash. | 1916
Respondent contracted in writing, on April 20,1910, for the furnishing and installation by it of a pumping plant on appellant’s ranch on the Columbia river, some eighteen miles north of Wenatchee and near Orondo. The time when the installation should be completed is not fixed by the contract. The contract is in the form of a letter or proposal and an acceptance thereof by appellant. A long list of articles of machinery, apparatus, and appliances is set forth in the contract to constitute the pumping plant, and the contract contains the following provisions:
“All agreements are contingent upon strikes, accidents or other causes beyond our control. All orders and contracts are taken subject to approval of the main office and quotations are for immediate acceptance and subject to change without notice.
“The above outfit to be installed complete on your ranch near Orondo, with the understanding that you dig the pit and trench and furnish one man and team to help on the in*295 stallation, and that you build the foundations after plans furnished you by us.
“The above for the net sum of sixteen hundred and ninety-four dollars ($1694). Terms, $130 with the order, $400 when the machinery is delivered on your ground, and the balance thirty days after the plant is complete and tested, provided that the test is not delayed through any cause which is not our fault.”
The respondent alleged that it had performed its part of the contract in all respects, except as it had been hindered and prevented from doing so by the failure of appellant and his neglect to dig a pit and trench of sufficient and adequate size to build foundations, as provided for in said contract; and the complaint prays for the entire sum remaining unpaid on the contract.
Appellant answered, admitting the execution of the contract, but asserting that the same was not all of the contract between the parties, inasmuch as no time was named therein within which the installation was to be made, and alleged that the plant was to be installed within a reasonable time, to wit, within thirty days, and within time for the irrigation of the crops for the season of 1910; and appellant denied each and every other material allegation in the complaint. He also set up a counterclaim in which he sets out the contract and alleges failure of the respondent to erect the pumping plant within a reasonable time or at all, and alleged that, by reason of such failure, his fruit crops for 1910 and 1911 were damaged in the total sum of $10,000. He alleged that the respondent had full knowledge of the extent of appellant’s orchard, the purposes for which the pumping plant was to be used, the necessity of receiving water from this particular source, and the probable damage that would be caused by a failure to install the plant as required.
Respondent replied, putting in issue material allegations of the counterclaim, and further alleging that the pump referred to in the contract was one of special manufacture and had to be manufactured after the contract was executed; that
The cause was brought on for trial before a jury, and after the evidence was all in, including the rebuttal evidence of respondent, the court, on motion of respondent, discharged the jury and rendered a judgment in favor of respondent on the contract for the full amount unpaid thereon, including interest and costs, and dismissed the counterclaim of appellant. Appellant unsuccessfully moved for a new trial.
The evidence in the case shows that the goods were shipped by steamboat from Wenatchee up the Columbia river and discharged on a gravel bank near Wagner’s ranch, at what is known as Wagner’s landing. The machinery was shipped at different times. Part of it arrived at Wagner’s landing about June 10, 1910, but the pump frame, a large steel frame about thirty feet long intended to be set in the well or pit and which had been injured in the wreck at Wenatchee, did not arrive at Wagner’s landing until about July 17, 1910. It also was unloaded from the steamboat upon this gravel bar, between ordinary high and low water mark, and never thereafter moved by either party. The well on Wagner’s ranch, where this machinery was required, was distant about 250 or 300 feet up a very steep and rocky bank from the place where the pump and machinery were deposited. The contract provided that the machinery was to be installed complete on appellant’s ranch, and it also provided that the first payment of $400 was to become due when the machinery was' delivered “on your ground.” The evidence shows that the pump frame alone weighed 2,785 pounds. There was considerable other machinery and apparatus.
Respondent contended, and the trial court took the view, that the delivery as made was a substantial delivery, being at or near respondent’s ranch; and that, in case it was not, the failure of appellant to object to such delivery waived ex
Respondent, on the other hand, contends that the strict compliance with this feature of the contract was prevented by reason of the failure of appellant to put in a foundation, as required by the contract. The evidence of appellant is that he dug the pit and trench; that he procured a supply of timbers for the purpose of building the foundation at the pit or well; that respondent failed to furnish any definite plans for the construction of the foundation; and that, if definite plans had been furnished, or if respondent had proceeded with the installation of the pump, he could have built the foundation in one day.
A paper was introduced in evidence as respondent’s exhibit 5, upon the supposition that it was the plan for the foundation. Respondent’s principal witness later admitted, however, that it was merely given to appellant to show the connection between the steel frame which respondent was furnishing and the wood frame which appellant was to erect. This was a mere pencil drawing or" a sketch of the proposed structure. There were no details upon it and it was not drawn to scale. The respondent’s principal witness excuses his failure to deliver plans for the foundation upon the ground that appel
Respondent, however, insists that, as to the law of the case, a substantial performance was shown by undisputed testimony, and that the modern rule permits recovery without a strict and literal performance if there has been a substantial performance and the contractor has attempted in good faith to perform the contract; citing 3 Page on Contracts, § 1385, and Taylor v. Ewing, 74 Wash. 214, 132 Pac. 1009.
But the same authority — Page—contains a further statement of the law:
“If a contract has been performed substantially and deviations from the contract have been made, but not willfully or in bad faith, the party so performing can recover the contract price, less the amount of damages caused by such deviation. The amount of such damages is usually the expense of completion according to the contract.”
In the case at bar, respondent sued to recover, and was permitted to recover, the entire amount of the contract according to his own theory, upon mere substantial performance of the contract and not literal performance; while appellant insists that the delay was wilful and inexcusable on the part of respondent.
Another question is raised by appellant which we consider necessary to pass upon. It is contended that the court erred in refusing to permit appellant to introduce evidence showing that the question of the time of delivery and installation was discussed and considered by the parties at the time of making the contract, for the purpose of showing what was a reason
The contract is complete upon its face, lacking only the element of time, and parol testimony that a particular time was expressly agreed upon is generally excluded under the familiar rule that parol evidence of a prior or contemporaneous oral agreement is not competent to vary, alter, contradict, or add to the terms of a written contract. Numerous cases are cited to sustain this proposition, among others that of Smith Sand & Gravel Co. v. Corbin, 81 Wash. 494, 142 Pac. 1163. In that case it was said, in consonance with the weight of authority, that:
“It is elementary that if a contract specifies no time, the law implies that it shall be performed within a reasonable time. 9 Cyc. 611. It is also well established that the legal effect of a written contract, though not stated in terms in the writing itself, but left to be implied by law, can no more be contradicted, changed or explained by extrinsic evidence, than if the legally implied effect had been expressed in the written terms. ‘The legal effect of a written contract is as much within the protection of the rule which forbids the introduction of parol evidence as its language,’ ” citing many cases.
The situation here, therefore, is that, inasmuch as the contract was silent as to the time of performance, the law implies a reasonable time to perform the contract, and what was or is a reasonable time under the circumstances, and within the contemplation of the parties, was a question of fact to submit to the’jury upon competent evidence, and not a question of law. The case cited by respondent, Kleeb v. Long-Bell Lumber Co., 27 Wash. 648, 68 Pac. 202, to the
For these reasons the judgment is reversed, and the cause remanded for new trial.
Morris, C. J., Bausman, Parker, and Main, JJ., concur.