Armstrong Const. Co. v. Thomson
| Citation | 390 P.2d 976,64 Wn.2d 191 |
| Decision Date | 09 April 1964 |
| Docket Number | No. 37051,37051 |
| Court | United States State Supreme Court of Washington |
| Parties | ARMSTRONG CONSTRUCTION COMPANY, Inc., a Washington corporation, Respondent and Cross-Appellant, v. Ralph E. THOMSON and Margaret Thomson, his wife, Appellants, Robert M. Jones and Jane Doe Jones, his wife, and Alan Liddle and Jane Doe Liddle, his wife, Respondents. |
James J. Keesling, Seattle, for appellants.
Caley & Armstrong, Lewis S. Armstrong, Lycette, Diamond & Sylvester, Albert O. Prince, Seattle, for respondents.
These are such stuff as dreams and law suits are made on--a builder, an architect, an owner, and great expectations unfulfilled.
Ralph and Margaret Thomson set out to build a house of their dreams. They would build it high on a hill overlooking the moving waters of Puget Sound amidst the serene splendor of the sun setting behind the towering Olympics. They spoke of their hopes to Alan Liddle, and he said he would design the house; and Alan Liddle did design a house of such overwhelming beauty that Ralph and Margaret Thomson fell in love with it and would have no other. He pictured it on their land facing just the right way, with the right view of the sea and mountains and not too strong a glare from the sun, but preserving, too, on the land some trees to give balance to the lovely scene. And Armstrong, the builder, said he would build the house in just this way--and to leave everything to him. Thus the idyl began, but no one of them reckoned with the quiet demands of the government. And not remembering thus, the dream was shattered.
Both Jones and Liddle, the architects, and Armstrong Construction Company, the building contractor, inadvertently overlooked the mundane provisions of the King County zoning code and building ordinances requiring a 25-foot setback in the backyard from the south property line, and they forgot the King County ordinances fixing minimum standards for location of the septic tank and sewer pipe.
Ample evidence supports the trial court's findings of fact. Jones and Liddle, licensed professional architects, after nearly a year of consultations with the Thomsons, designed a house for them on their marine and mountain view lot in the Marine Hills Division area of King County. Architectural drawings of the house allowed maximum view of water and mountains consistent with optimum protection from the sun and received the Thomsons' approval both in their detail and placement on the lot. The Thomsons paid the architects $2,100 in part payment for their services, the total fee to be 10 per cent of the entire cost of construction. Armstrong Construction Company, in the contract dated April 7, 1960, agreed to build the house for $28,347 exactly as pictured, planned and specified, and to commence work as stated in the construction contract 'on or before 10 days after receiving building permit.' The builder likewise agreed in the contract 'To give all requisite notices to the proper authorities; obtain all official inspections, permits, * * * and pay all proper and legal fees for same.'
April 28, 1960, the contractor applied to the King County Engineer's office for a building permit, paying a filing fee of $31.40. A prerequisite to its issuance was a report from a licensed sanitary engineer of soil percolation tests; to perform these tests, the land had to be bulldozed so that true elevation could be established. Accordingly, the contractor paid $331 for the bulldozing, leveling and excavating, and $45 to a sanitary engineer for making the tests of and report on the proposed sanitary system.
But, before the building permit issued, the contractor started construction. On an occasion when the Thomsons were present, the architect and builder staked out the exact outline of the house on the lot, and the builder, having already leveled and excavated, proceeded to build the foundation on May 13, 1960. He spent $1,741.38 in labor and materials. After the foundation had been poured, the building permit issued on May 20, 1960. Shortly thereafter, the county building inspector brought the work to a halt when he notified the contractor that he was unable to verify the property lines. Inspection and measurements proved the south or rear setback to be only 10 feet instead of the minimum 25 feet required by both the zoning code and the building permit. The Thomsons declined proffered changes either in design or location of the house to enable the architect and builder to accommodate it to the 25-foot setback requirements. They did apply for a variance permit to allow the house to be built as designed and placed, but when this was denied by the planning commission refused to go ahead with the project.
Armstrong Construction Company brought this action against the owners to foreclose a lien of $1,741.38 filed by it for work performed and materials used in excavating and puring the foundation, and to recover $407.40 for three other expenditures: $331 for the leveling of the lot in making it ready for the percolation tests, $31.40 for the building permit fee, and a $45 fee paid the sanitary engineer for his testing and report. Defendants Thomson joined the architects, Jones and Liddle, as third-party defendants asking a return of their $2,100 advance to the architects. They also asked for judgment against the architects for any amounts the builder might recover from them and an attorney's fee of $950 for their costs in defending the lien foreclosure action brought by Armstrong Construction Company.
In answer, the architects asserted that expenditures made and costs incurred by the builder were chargeable to the latter's negligent failure to observe the written conditions of the contract prquiring...
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