Harty v. Bye

Decision Date14 April 1971
Citation258 Or. 398,483 P.2d 458
PartiesGlenn HARTY, Respondent, v. Ada R. BYE, Appellant.
CourtOregon Supreme Court

Larry C. Hammack, Portland, argued the cause for appellant. With him on the briefs were Williams, Montague, Stark, Hiefield & Norville, and Preston C. Hiefield, Jr., Portland.

David G. Frost, Hillsboro, argued the cause and filed a brief for respondent.

Before O'CONNELL, C.J., and DENECKE, HOLMAN, and BRYSON, JJ.

BRYSON, Justice.

This is an action on a written contract by plaintiff, a licensed well driller, to recover the unpaid balance of the contract price for drilling a well on defendant's property. The plaintiff alleges that he performed all of the obligations required of him under the terms of the contract. The defendant admits the terms and execution of the contract but denies performance on the part of plaintiff and further denies that any sum of money is due plaintiff by defendant. By way of counterclaim, defendant demands judgment against the plaintiff under a provision in the contract for liquidated damages in event the plaintiff failed to complete the well on or before April 1, 1967. Plaintiff filed a general denial to the counterclaim.

The pertinent parts of the contract are as follows:

'AGREEMENT

'* * *.

'2. Contractor shall commence to drill said well forthwith upon the execution of this Agreement and shall finish or complete the same no later than April 1, 1967. In the event Contractor fails to complete said well in accordance with the terms and provisions hereof, on or before April 1, 1967, it is agreed that Contractor shall pay unto Owner the sum of $50.00 per day for each day after April 1, 1967, that said well has not been completed as liquidated damages; * * *.

'* * *.

'4. The well to be drilled by Contractor hereunder shall be a twelve (12 ) inch well and Contractor shall provide all necessary casing for the complete depth of said well * * *.

'* * *.

'9. The full compensation to Contractor for all the work performed hereunder shall be the sum of $12.00 per lineal foot drilled, and it is agreed by Owner that Owner shall pay for drilling based upon each 100 of drilling at the rate $6.00 per lineal foot; that is to say, when the first 100 of drilling is completed, Owner shall forthwith pay the Contractor the sum of $600.00, with a like amount to apply to subsequent units of 100 of drilling and with a final payment to be made immediately upon completion of drilling computed as follows: $12.00 per lineal foot drilled less all payments previously made by Owner to Contractor.'

The case was tried by the court without a jury. Neither party requested special findings of fact. The court entered a general finding that 'the plaintiff sustained by a preponderance of the evidence his claim against defendant and is entitled to recover from the defendant the sum of $3,184.00,' together with costs and disbursements and entered judgment accordingly. The defendant appeals.

The defendant's first assignment of error is that the judgment of the trial court was erroneous in that such a judgment could only be based upon a finding that the defendant breached her contractual obligation of payment to plaintiff under the terms and provisions of the written contract entered into between them, and there is no evidence in this case of any such breach or default by the defendant.

The court's general findings for the plaintiff carries the weight of a jury verdict, ORS 17.435, and will not be disturbed on appeal if supported by any substantial evidence. Kuzmanich v. United Fire and Casualty Co., 242 Or. 529, 410 P.2d 812 (1966).

The evidence disclosed that the defendant owned 74 acres of land in Washington county. Twenty acres were leased to a Mr. Cobb for quarrying rock. On the remaining 54 acres the defendant raised cattle and used the land for pasture. The upper pasture was situated on a slope and consisted of 20 acres; the lower pasture consisted of the remaining 34 acres. Defendant desired to irrigate the pasture land and contracted the plaintiff about drilling a well. After preliminary negotiations, defendant had her attorney prepare a contract which was presented to the plaintiff and executed on December 21, 1966. Plaintiff began the well drilling operation on February 24, 1967. By March 7, 1967, he had drilled and cased the well to a depth of 100 feet whereupon defendant made the progress payment of $600, as provided in paragraph 9 of the contract, Supra. By March 28, 1967, plaintiff had drilled the well to a depth of 201 feet. The well had been cased with 12 casing to a depth of 124 feet, of which 118 feet was through 'alluvium and unconsolidated material' and six feet into 'consolidated material,' or hard rock. Although defendant was notified of the well's progress throughout, she made no further progress payment. Plaintiff, however, continued his drilling operation and on April 21, 1967, he had drilled the well to a depth of 357 feet and considered the drilling operation completed. The evidence shows that by this time the plaintiff had permeated a layer of chert, a 'greyish material found in water-bearing strates (sic) in different parts of the Tualatin Valley.' This layer of chert ran directly beneath the consolidated material through which the well had been cased and produced a water flow from the well of 170 gallons per minute. The defendant concedes on this appeal that the well was completed on April 21, 1967, except for the fact that the casing does not extend to the bottom of the well.

Defendant contends that the provisions in paragraph 4 of the contract, Supra, that the '* * * contractor shall provide all necessary casing for the complete depth of said well' means that the plaintiff unconditionally promised to case the well to its entire depth and that his failure to do so is a breach of such a material part of the contract as to discharge defendant's duty to make the payments as provided therein. In support of this argument, defendant relies on the rule in Restatement 750, Contracts § 397:

'A breach or non-performance of a promise by one party to a bilateral contract, so material as to justify a refusal of the other party to perform a contractual duty, discharges that duty.'

However, it is apparent on the face of the rule that its relevance here turns on the correctness of defendant's interpretation of the well casing provision in the contract. We do not reach the question whether plaintiff's performance in casing the well was so material a breach of the contract as to discharge defendant's obligation to pay until it is established that plaintiff's performance in that respect was in fact a breach. Therefore, it is necessary to consider that portion of the contract which refers to the casing of the well to determine whether there was a breach by plaintiff.

This court subscribes to the objective theory of contracts. Springer v. Powder Power Tool Corp., 220 Or. 102, 348 P.2d 1112 (1960); Rushlight Automatic Sprinkler Co. v. City of Portland, 189 Or. 194, 219 P.2d 732 (1950). In Springer v. Powder Power Tool Corp., Supra, this court quoted with approval the theory in Restatement 310, Contracts § 230:

'The standard of interpretation of an integration, except where it produces an ambiguous result, or is excluded by a rule of law establishing a definite meaning, is the meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration, other than oral statements by the parties of what they intended it to mean.'

We do not think the provision referring to the casing of the well is ambiguous nor, if it were, would such ambiguity aid the defendant as ambiguities in written contracts are resolved against the writer thereof. Sertic v. Roberts, 171 Or. 121, 136 P.2d 248 (1943); Herrold v. Hartley, 144 Or. 368, 24 P.2d 338 (1933); and See Quillin v. Peloquin, ...

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  • Chaffin v. Ramsey
    • United States
    • Supreme Court of Oregon
    • October 21, 1976
    ...(Emphasis added) The rule as stated in Restatement § 339 has been expressly approved and adopted by this court in Harty v. Bye, 258 Or. 398, 407, 483 P.2d 458 (1971). It may be conceded that the second of these requirements is satisfied by the evidence in this case. In my opinion, however, ......
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    ...241 Or. 38, 44, 404 P.2d 203 (1965) and applied subsequently in Weber v. Anspach, 256 Or. 479, 473 P.2d 1011 (1970); Harty v. Bye, 258 Or. 398, 483 P.2d 458 (1971); Wright v. Schutt Construction Co., 262 Or. 619, 500 P.2d 1045 (1972); Babler Bros. Inc. v. Hebener, 267 Or. 414, 517 P.2d 653 ......
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  • Southworth v. Oliver, L-6544
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