Arnott v. City of Spokane

• Decision Date: 03 June 1893
• Citation: 33 P. 1063,6 Wash. 442
• Parties: ARNOTT ET AL. v. CITY OF SPOKANE.
• Court: Washington Supreme Court

33 P. 1063

6 Wash. 442

ARNOTT ET AL. v. CITY OF SPOKANE.

Supreme Court of Washington

June 3, 1893

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by John Y. Arnott & Co. against the city of Spokane for breach of contract under which plaintiffs had furnished stone for a bridge. Judgment for plaintiffs. Defendant appeals. Reversed.

P. F Quinn, Corp. Counsel, for appellant.

Feighan Wells & Herman, for respondents, cited in support of the proposition that the respondents have a right to recover any damages they may have suffered by reason of hindrance, delay, or default: Starbird v Barrons, 38 N.Y. 239; Sickels' Case, 1 Ct. Cl. 214; Speed's Case, 2 Ct. Cl. 429, affirmed on appeal 8 Wall. 77, and 7 Ct. Cl. 93; Bulkley v. U. S., 19 Wall. 37, 9 Ct. Cl. 81; Parish's Case, 100 U.S. 500; Field's Case; 16 Ct. Cl. 434; Moore & Kroone's Case, 17 Ct. Cl. 17; Power's Case, 18 Ct. Cl. 493; Masterton v. Mayor, etc., 7 Hill, (N. Y.) 61.

ANDERS J.

On the 17th day of November, 1890, the respondents and the appellant entered into a written contract, the material portion of which is as follows: "This agreement, made this 17th day of November, A. D. 1890, between John Y. Arnott and Charles Ferguson and ***, copartners doing business under the firm name of John Y. Arnott & Company, of Spokane county, state of Washington, party of the first part, and the city of Spokane Falls, by C. F. Clough, mayor, party of the second part, witnesseth that the said party of the first part, in consideration of the covenants on the part of the said party of the second part hereinafter contained, hereby covenants with the said party of the second part that the said party of the first part will furnish the stone required for the Monroe street bridge piers, according to the plans and specifications, cut and delivered upon the ground where needed, according to the plans and specifications, ready to be set in place; a part of the rock to be delivered within sixty days, and completed within sixty days. Said stone shall be as per sample furnished the city council this 15th day of November, free from loose seams or imperfections of any kind, and subject to the inspection and acceptance of the city engineer. All stone must be dressed so that their top surfaces shall be parallel with their beds, and require no tooling after the stones are set. All coping stones shall be cut according to the plans furnished by the engineer, and shall have all exposed surfaces bush hammered, and comply with all other requirements of the engineer, as set forth in the plans and specifications now on file in the city clerk's office, which are hereby made a part of this contract, as far as said specifications refer to the stone to be used in the piers of said Monroe street bridge. And the said city of Spokane Falls, party of the second part, in consideration of the covenants on the part of the said party of the first part hereinbefore contained, agrees to and with the said party of the first part that the said party of the second part will pay to the said party of the first part, or his order, $1.32 for each and every cubic foot of cut stone so delivered, to be measured in the pier, according to the approximate estimate made on Monday of each week of material delivered prior thereto. Said estimates to be made by the city engineer, and to be paid in cash immediately after said estimates have been reported to the city council, which is to be done at the next meeting after said estimates. In witness whereof," etc. Immediately upon the execution of this contract, the respondents commenced to furnish stone, and to cut the same, and continued so to do without interruption or delay until some time in January, 1891. Estimates were made and given to the respondents for material furnished for the first four weeks, and cash payments were made thereon according to the stipulations of the contract. But, after the fourth estimate, the appellant failed to make payment on estimates when due. Work was continued after default in payments for about two weeks, and then discontinued or "shut down" by the respondents. This was about the 10th of January, 1891, and the suspension of work was continued for about the period of 14 days. During this time no stone cutters were at work, but the respondents continued to receive stone at their yard from the party or parties who had contracted to deliver it to them, and employed laborers to assist in unloading the same. On or about January 10, 1891, a verbal arrangement was made between the respondents and the bridge committee and mayor of the city whereby the respondents agreed thereafter to take city warrants, which were selling at a discount, in lieu of cash, at the rate of 90 per cent. of their par value; and the bridge committee and mayor promised that the appellant would pay respondents the discount of 10 per cent. in cash on all warrants so received by them. The respondents thereupon resumed cutting and delivering stone, for which weekly estimates were made, and warrants were given in payment thereof in "blocks" of $500 each. Some time in February the respondents again suspended work, for the alleged reason that they could not sell their warrants, and were without the means wherewith to pay their employes; but, about a month afterwards, they proceeded with their work, and completed it about the 1st of May, 1891.

It seems to be fairly deducible from the evidence that the respondents, before they resumed work after their first "shut down," notified the bridge and street committee and the acting mayor that they would hold the city liable for all extra cost of labor and transportation resulting from the failure to pay cash according to the terms of the contract, and the consequent suspension of their work, and that the committee and mayor tacitly, if not directly, agreed that the city would be responsible for the same. The respondents furnished, at the request of the city engineer, 332 feet of rock, which does not appear to have been called for by the original contract, but which was used in constructing the piers. They also cut down one pier some four inches, which work was occasioned by a mistake in the original specifications. Before the work was completed, the roads became very muddy, and the respondents claim they were compelled to pay a much larger sum for hauling rock thereafter than before, and that, by reason of their not being able to finish their work within the 60 days specified in the contract, owing to the fault of the appellant in not paying the weekly estimates in cash, they were obliged to dress a considerable portion of the stone after it had become affected by frost to such an extent that the cost of cutting was enhanced about 50 per cent. They also claim that, by reason of the accumulation of stone during the time work was first suspended, a portion of it was necessarily deposited and dressed outside of the shed prepared for the cutters to work in, and that they were compelled to pay the extra sum of 50 cents per day to each laborer who worked outside of the shed. The total estimates furnished to the respondents (including $320 for a derrick sold to the appellant, and, as it appears, the extra stone furnished at the original contract price) amounted to $26,974.40. The respondents admit in their testimony that they received in cash and warrants reckoned at their face value that sum, less $62. About $20,000 in warrants was received from the city altogether, and the city claims that $1,100 cash, as discount, was received by respondents in accordance with the verbal agreement above mentioned, while the respondents claim that but $850 was so received by them. After the respondents delivered all the stone required by the terms of their agreement, they presented to the city a claim for extra work and materials, and for damages for breach of their contract, and also for a balance due, amounting in all to between $5,000 and $6,000. The city council refused to allow the claim, or any part thereof, whereupon the respondents instituted this action to recover the amount thereof. From a judgment in favor of the plaintiffs, the defendant appealed.

During the course of the trial, the court admitted certain testimony tending to show the verbal agreement above mentioned in regard to the payment of extra cost of labor, transportation of materials, etc., and also testimony as to the agreement to discount the warrants of the city. The appellant insists that the ruling of the court in this regard was erroneous, and contrary to the express terms of the statute. Section 85 of the charter of the city, which was then in force, provides that "the city of Spokane Falls is not bound by any contract or in any way liable thereon, unless the same is authorized by a city ordinance, and made in writing, and, by order of the council, signed by the clerk or some other person authorized by the city; but an ordinance or resolution may authorize any officer or agent of the city, naming him to bind the city without a contract in writing for the payment of any sum not exceeding fifty dollars." Laws 1885-86, p. 321. The contention of the appellant is that neither the bridge committee nor the mayor had any right or power to bind the city by any agreement or contract not made...