118 Wash. 564 | Wash. | 1922
— This is an action by Lee Wright against J. F. Duthie & Company, a corporation, to recover damages for the breach of a contract by which he undertook to perform certain work upon two steel vessels under construction in the corporation’s yard at Seattle. The contract was as follows:
“Seattle, Wash., March 31,1921.
“I, the undersigned, agree to do all the chipping, caulking and packing, and to test the tanks, on the Coal Carriers known as Hulls Nos. 36 and 37, for the sum of Five Thousand Two Hundred Fifty ($5,250) Dollars per hull.
“It is understood and agreed that this figure covers the whole cost of this work, which is to be done in accordance with the plans and specifications covering said ships.
“Lee Wright.
“We agree to the above with the understanding that said work is to be performed in a workmanlike manner and completed when needed, due allowance to be made in the event of a strike.
“ J. F. Duthie & Co.
“By J. F. Duthie, President.”
It was alleged that the plaintiff entered upon the performance of the contract, and that defendant, without reasonable excuse, refused to permit him to complete it, whereby he was damaged in the sum of $4,500.
It is contended by the appellant that the evidence shows the respondent breached the contract and failed to prove recoverable damages. In the construction of a steel vessel the rivets are supposed to be driven water tight and tested with a hammer prior to the work of caulking and packing. Appellant contends that the riveting upon these two hulls was done in the usual manner, and that respondent refused to caulk those on the shell of the vessels without extra pay, which was refused, upon the claim that there was an excessive number of leaking rivets. On the contrary, respondent claims that the usual and ordinary driving and testing of rivets (such as was specially promised Tiim in this case) required that not to exceed five or six per cent should require caulking, that approximately eighty per cent of these rivets were not driven water tight and needed caulking, and that, upon his reporting it, he agreed to stand one-half of the extra expense and that appellant agreed to pay the other half.
It appears that in caulking rivets proper care must be taken not to use rough or sharp tools, so as to avoid leaving the head of the rivet rough, causing it to rust quicker; and also to avoid cutting into the plate about the rivet, weakening and causing it to rust quicker.
Upon the assignment that damages were not proven, appellant claims the respondent could recover, if at all, only the difference between the contract price and the amount he and his men had been paid, plus what it would have cost him to complete the contract, including his own time. But the case was clearly one of lost profits on the whole contract. That was the theory on which it was tried. The evidence shows that the respondent and others he employed worked on the job, and that, until the contract was cancelled by the appellant, payments had been made from time to time upon the basis of $12 per day for the respondent and each of his men, in the total sum of $3,839.60. Respondent’s evidence, from qualified competent witnesses, shows that one vessel Was seventy to seventy-four per cent and the other eighty-six to eighty-eight per cent complete, from which it was submitted that the jury could reasonably draw the conclusion as to the proper amount of damages or loss of profit. Appellant objects that that basis for the verdict is merely conclusions of the witnesses and does not comply with the rule with respect to proof of prospective profits.
Also, in this respect, it is argued there is erroneously included in the estimate the loss of respondent’s time in addition to his loss of profits. We do not so understand the proof. The estimate as to the work yet to be done and the balance to be paid under the contract price were based upon the respondent’s continuing to work as he had been working. It was immaterial to the appellant who did the work, since all that was demanded by respondent as lost profits was the difference between the cost of the work and the contract price. Appellant relies on the case of Di Luch v. Bradner Co., 111 Wash. 291, 190 Pac. 904. It was a case in which there was a claim of damages for lost profits in the sum of $400, and in addition the value of the personal work plaintiff would have performed in the sum of $238 had he been allowed to carry out the contract. In the present case, the second claim of damage is lacking. It is confined to loss of profits.
After cancelling the contract, the appellant, in completing the work on the vessels, claims to have expended such sum that it, with the amount paid to the
Exceptions were taken to instructions that, if the jury found by a fair preponderance of the evidence appellant prevented respondent, without reasonable excuse, from completing the work and respondent was damaged thereby, they should find for him; but that if he was not damaged thereby, then they should find for the appellant. And further, that, if they find for the respondent, they should allow such an amount “as in your opinion will fairly and justly compensate him for the damages, if any, which has been established by the evidence because of defendant’s preventing him from completing the work”, not, however, exceeding $4,500. Specifically, it is argued that the only damages alleged are lost profits, while the instructions do not so limit the right of recovery, but that the jury might well have understood they could allow the respondent for loss of time. "What has already been said heretofore sufficiently answers the argument, as there was neither allegation nor proof of damages for loss of time.
The instruction that the measure of damages is the excess, if any, of the price respondent was to receive under the contract for the performance of the work over what it would have cost him to have performed the work called for in the contract was proper; ánd the refusal to give a requested instruction in different language upon the same subject was not prejudicial.
Instructions were requested and refused to the effect that if the tools used by respondent were not proper, or if his manner of caulking the rivets of the tanks of the vessels while they were under a head of water pressure was not proper, that then the respondent broke the contract and the verdict should be for the appellant. There was a dispute as to the rule and practice in these respects as well as the kind and condition of the tools that were used, as well as the kind that should be used, and we are satisfied the jury was properly advised by the instructions with reference to whether or not appellant prevented respondent, without reasonable excuse, from completing the contract.
The court gave the general instruction that the burden was upon the plaintiff to prove by a fair preponderance of the evidence the material allegations of the complaint. Appellant claims the instruction was not sufficient where the sole recoverable damages, if any, were lost profits. But since it has been seen that loss of profits was all that was claimed by the complaint and of which any evidence was given, we think the instruction was sufficient. Other instructions requested and refused were properly refused or sufficiently covered by instructions that were given.
Judgment affirmed.
Parker, C. J., Hovey, Main, Holcomb, Tolman, Mackintosh, and Bridges, JJ., concur.