77 Wash. 392 | Wash. | 1914
Lead Opinion
This is an action to foreclose a laborer’s lien. The case was tried to the court. There was a judgment for plaintiff. The defendant has appealed.
The complaint alleges that, about the first day of January, 1911, the plaintiff and his five assignors began working for the defendant; that the work consisted in the clearing of certain lands, at an agreed price of $30 per acre, one-half
The court found that the respondent and his assignors had cleared 74.53 acres; that they had been paid $935.89 in cash, and that there was due them on June 1, 1911, a balance of $1,300. The court also found “that the plaintiff and his assignors continued to work for the defendant under said contracts until on or about June 1, 1911, when they were informed by the defendant that there was no more land to be cleared and that they should quit.” The court further found that the appellant’s title to the land was defective, and therefore concluded that it had breached its contract in two respects, (a) in requiring the respondent and his assignors to quit, and (b) in that the title to the land which it had agreed to convey to them was defective. These findings and
The contract with the respondent and each of his assignors provides:
“The purchaser is to do clearing work for this company at the rate of $30 per acre, $15 per acre to apply as a credit on this contract. In addition to this $15 per acre, there will be deducted on the first settlement made for clearing done [about February 10, 1911] five dollars per acre cleared at that time in lieu of cash payment by the purchaser, and $2.50 per acre will be deducted on each acre cleared thereafter until $40 has been paid as the initial payment.”
This provision in the several contracts accounts for the discrepancy between the cash payment and the property credits allowed by the appellant. There is a difference of 3.42 acres between the amount of clearing conceded by the appellant and the amount found by the court. In other words, the court found that the respondent and his assignors had cleared 3.42 acres more than the appellant concedes. The land had been logged about 1890, and the clearing consisted in cutting the young growth.
A reading of the testimony makes it clear that the appellant has conceded to the respondent and his assignors a larger credit for clearing than they were entitled to. The testimony shows that they were to clear the land, cut the growth within six inches of the ground, and fall the small timber so that it would all lie in the same general direction, and so as to give it harmony with other clearing which the appellant was having done at the same time by other contractors. The testimony of disinterested witnesses makes it clear that they did not do the “clearing work” in the manner contemplated by their contract, but as one of the witnesses puts it, that they did it “in a careless and improper manner;” that their work was “slashing of a rough sort,”
As we have observed, the court found that the appellant directed the respondent and his assignors to quit. Under the findings of the court, they still owed $200 upon the land and were not then entitled to deeds unless they had been directed to quit. The finding is not within the issues, nor is it supported by the preponderance of the testimony. There is no suggestion in the complaint that the respondent or his assignors were directed to quit. On the other hand, the complaint is drawn upon the theory that they had performed their contract, that they had demanded deeds, and that the appellant’s title to the land was defective. The respondent testified that, about June 1, “the force” in charge of the appellant’s work told them that the appellant had no more land to clear, and that “we would have to quit.” He further testified upon cross-examination, “that all quit in June, 1911; that we quit in June, 1911. J. P. Holman, who had taken charge after Mr. Oliphant left, would not pay us the amount of the acreage we had gone over.” One of the plain
“The Austrian laborers insist that they have cleared more acres than shown by your statement, and they are very insistent upon an early settlement. I shall have some one go up to Irondale and measure the land tomorrow or next day, and I wish you would have your surveyor do the same again right away so the matter may be closed. They claim they want to go out to work and will not do so until this is settled.”
The appellant’s version that they quit voluntarily because they claimed that they were not being paid for all the clearing is corroborated by the silence of the complaint upon this question, by the letter of their counsel, and by all the attending circumstances. There was still clearing to be done. The ground which they had slashed still required much work to clear it within the meaning of the contract.
The trial court concluded, as a matter of law, that the appellant’s title to the land which it had agreed to convey to the respondent and his assignors was not a marketable title, and hence that the parties were entitled to a lien. The question of title is not before us. The lots have not been fully paid for. The appellant will have fulfilled its obligation if
Our conclusion is that the respondent and his assignors, at the time of the commencement of the action, had been paid in full for their work in money and credits upon their several contracts; that the contracts were breached by the respondent and his assignors, and not by the appellant, and that the respondent has failed to sustain his cause of action by a preponderance of the testimony.
The case was tried in January, 1912. The findings were not signed until October following. A reading of the testimony has persuaded us that, during this interval, some of the testimony in the case must have escaped the attention of the trial judge.
The statute, Rem. & Bal. Code, § 1736 (P. C. 81 § 1225), puts the burden upon this court of trying the case de novo in actions legal or equitable tried to the court. In the discharge of this duty, we treat the findings of the trial judge with great respect; but if, upon an examination of the evidence, we become convinced that a preponderance of the testimony is against the findings of the trial judge, it becomes our duty to make our own view effective. Lewis v. Lean, 76 Wash. 596, 137 Pac. 341; Borde v. Kingsley, 76 Wash. 613, 136 Pac. 1172.
The judgment is reversed, with directions to dismiss the action.
Crow, C. J., Ellis, Main, and Chadwick, JJ., concur.
Rehearing
On Petition for Rehearing.
[En Banc. February 28, 1914.]
In the opinion in this case, we said that the finding, that the respondent and his assignors were directed to quit work, was “not within the issues, nor is it supported by the preponderance of the testimony. There is no suggestion in the complaint that the respondent or his assignors were di
“The appellant’s version that they quit voluntarily because they claimed that they were not being paid for all the clearing is corroborated by the silence of the complaint upon this question, by the letter of their counsel, and by all the attending circumstances.”
In the petition for rehearing, it is said that the opinion is in conflict with Gold Ridge Mining & Development Co. v. Rice, ante p. 384, 137 Pac. 1001, where we said:
“In respect to the contention that the counterclaim is not pleaded, it is sufficient to say that the evidence was admitted without objection, and, under the uniform decisions of this court, the issues became as broad as the evidence.”
We do not regard the cases as conflicting. We did not hold in this case that the issues had not been broadened by the evidence, but merely adverted to the silence of the complaint, and its general theory and scope, as circumstances tending to corroborate the theory of the appellant; that is, that the respondent and his assignors voluntarily quit work. The two cases, when carefully read, show no inconsistency.' After stating that the finding was not within the issues, we proceeded to discuss the evidence upon which the finding was based, and held that the respondent had failed to establish his discharge by a preponderance of the evidence.
It is also argued in the petition for rehearing that the letter set out in the opinion does not imply that the laborers voluntarily quit work. We think, when read in the light of the record, the letter is a circumstance tending to show that fact. Torn from its setting, it may not have that effect. It may even be a slight circumstance. Be this as it may, the writer of the opinion, after reading the abstract of the evidence, disregarding this letter, had no doubt that the respondent and his assignors voluntarily quit work because
The petition is denied.
All Concur.