Batcheller v. Town of Westport

• Decision Date: 06 September 1951
• Docket Number: No. 31659,31659
• Citation: 235 P.2d 471,39 Wn.2d 338
• Court: Washington Supreme Court
• Parties: BATCHELLER et al. v. TOWN OF WESTPORT.

Page 338

39 Wn.2d 338

235 P.2d 471

BATCHELLER et al. v. TOWN OF WESTPORT.

No. 31659.

Supreme Court of Washington, Department 1.

Sept. 6, 1951.

Rehearing Denied Oct. 29, 1951.

Wettrick, Flood & O'Brien, Seattle, for appellant.

Weter, Roberts & Shefelman and James Gay, Seattle, John E. Close, Aberdeen, for respondent and cross-appellant.

DONWORTH, Justice.

Plaintiffs brought this action to recover for engineering services rendered defendant under a contract of employment. Defendant cross-complained, seeking recovery of $12,750 paid to plaintiffs under the contract, alleging that such services as were rendered by plaintiffs were valueless. The action was tried to the court. At the conclusion of the testimony the trial court took the case under advisement and thereafter filed its memorandum decision in which it held that plaintiffs' complaint and defendant's cross-complaint should both be dismissed. Findings of fact and conclusions of law were entered accordingly. Plaintiffs moved for judgment notwithstanding the oral decision of the court, or, in the alternative, for a new trial. The court denied the motion and entered judgment dismissing both the complaint and the cross-complaint.

Plaintiffs and defendant respectively appeal from that portion of the judgment adverse to each.

Appellants are Willis T. Batcheller, a registered civil and electrical engineer, and Willis T. Batcheller, Inc., a corporation controlled by Batcheller. Respondent and cross-appellant is the Town of Westport, a municipal corporation of the state of Washington (herein called the town).

In 1945 the citizens of Westport were desirous of obtaining an adequate water supply and for that purpose appointed a committee representing the town council. On January 17, 1946, two members of the committee called on Arthur Garton, the then director of conservation and development, in Olympia, asking for suggestions as to whom to consult for engineering and financial advice. Batcheller, whose office was in Seattle, chanced to be in Olympia that day. Mr. Garton located Batcheller there and introduced him to the members of the committee.

Batcheller told the committee of his experience and qualifications and a general discussion of the proposed project ensued. As a result Batcheller went to Westport February 1, 1946, and rendered a verbal report to the town council consisting of his preliminary ideas as to the proposed water system. While there, he interviewed members of the town government and managers and proprietors of the town's main industries. On February 4, 1946, the town formally employed Batcheller by passing resolution No. 126, which he drafted. It will be set out in full later in this opinion.

To attempt to describe in detail all of the services rendered by appellants between February 4, 1946, and October 16, 1947, when they were discharged by resolution No. 153, would unduly extend this opinion and serve no useful purpose. Suffice it to say that Batcheller devoted practically his entire time during that period of nearly twenty-one months to serving the town in planning and financing the proposed water system. These services were of substantial character and resulted in the town's ultimately obtaining $150,000 from the state for the construction of the project and $12,750 from the Federal Works Agency for preliminary planning. This latter sum was paid by the town to appellant in partial satisfaction of his compensation under resolution No. 126.

The principal issue presented is whether the town had the legal right to discharge appellants by resolution No. 153 without liability for compensation for their services.

The trial court found the facts involved in this issue to be as follows:

'III

'That on the 4th day of February, 1946, the defendant, by its Resolution No. 126, duly adopted by the Town Council of the defendant and approved by the Mayor of the defendant, employed plaintiff, Willis T. Batcheller to take charge of the engineering work in connection with certain water works improvements, additions, and completion work, as more fully set forth in said Resolution 126, a true and correct copy of which is marked Exhibit A, attached to the Complaint of plaintiffs herein, and by this reference is also made a part hereof as though fully set forth herein, it being understood and agreed that payment of plaintiffs' compensation was contingent upon their completing plans and specifications, which would enable defendant to construct a satisfactory water system in accordance with said plans and specifications within the funds available to defendant, plaintiffs also to furnish supervision and inspection of construction.

'IV

'That pursuant to said employment said Willis T. Batcheller made preliminary surveys and investigations of the sources of water supply, prepared a cost estimate and preliminary report on the project, aided in obtaining from the State of Washington for the defendant's use in the construction of said improvements the sum of $150,000.00 and from the Federal Works Agency the sum of $12,750.00 to be used for preliminary engineering which latter sum was paid over to plaintiffs, prepared plans and specifications for the project on which bids were called on June 14, 1947 and again on June 28, 1947, did some engineering work on the ground, conferred with various bond houses with reference to financing the project, and endeavored to secure bids upon the project.

'V

'That the plaintiffs' final total estimated cost of the project was the sum of $300,000.00, and the total amount of funds available to the defendant for the construction of said municipal water system, for all purposes including engineering fees, legal fees, administrative expenses, rights of way, interest during construction, bond discount and contingencies, was $150,000.00 by a grant of the State of Washington and the proceeds of the sale of $175,000.00 par value of bonds approved at a bond election. That the amount which could be so raised would be somewhat less than $325,000.00 because the bonds would have to be sold at a discount.

'VI

'That no bid was received for the construction of the entire project. That bids were received for construction of various parts of the project with no bids on a few portions thereof. That acceptance of the lowest bids received on the various portions of the project would indicate a total construction cost of at least $424,095.69, to which would have to be added an estimated sum of $34,973.00 to cover State sales tax, acquisition of rights of way, legal fees, printing and advertising, interest during construction and bond discount, or a total of $459,068.69. That such total cost does not include plaintiffs' engineering fees. That including engineering fees the total cost of the project under said bids would have been approximately $500,000.00.

'VII

'That the officials of defendant Town at regular Council meetings and at other times repeatedly orally requested and urged plaintiffs to revise the plans and specifications so that a satisfactory water system could be built within the available funds. That plaintiffs entered into negitiations with the bidders on some items and with others who had never bid, and proposed some eliminations and changes in the plans, but plaintiffs wholly failed and neglected to prepare plans and specifications upon which acceptable bids could be made so that the project could be completed within the available funds.

'VIII

'That there was never any determination of a satisfactory dam site by borings or other investigation to determine porosity. That no dam site or rights of way were acquired nor the cost thereof shown. That the construction costs of the proposed dam was not determined. That the water supply under plaintiffs' plans was not adequate or suitable.

'IX

'That the system as planned by plaintiffs could not be built within the funds available or within the ability of the defendant Town to finance.

'X

'That for the foregoing reasons the defendant Town elected to rescind and terminate its contract with plaintiffs by resolution of the Town Council regularly passed and approved by the Mayor on October 16, 1947, the same being Resolution No. 153, a true and correct copy of which is attached to the Answer and Cross-Complaint, marked 'Exhibit 1', and by this reference incorporated herein. That notice of said rescission and termination and a copy of said Resolution was duly given to plaintiffs.

'XI

'That on the 15th day of November, 1947, plaintiffs presented their duly executed claim for damages in the sum of $20,000.00 to the Town Council of the defendant; that the defendant did not take any formal action on said claim and more than 60 days elapsed between the presentation of said claim and the commencement of the within action.

'XII

'That plaintiffs put forth considerable effort in procuring the State grant of $150,000.00 and the $12,750.00 from the Federal Works Agency. That the Court is unable to determine any figure to compensate plaintiffs for such effort and labor less than the full amount of $12,750.00 received by them.'

The trial court, in its conclusions of law, stated:

'I

'That plaintiffs failed to perform their contract with the defendant Town, by reason of which defendant Town was logally entitled to and did duly rescind said contract.

'II

'That plaintiffs' Complaint should be dismissed with prejudice.

'III

'That defendant's Cross-Complaint should be dismissed with prejudice.

'IV

'That defendant Town should have judgment against plaintiffs for its costs and disbursements herein to be taxed.'

Appellants' ten assignments of error are stated in their brief as follows:

'1. The court erred in making and entering its Findings of Fact No. 3 wherein it found that plaintiffs' compensation was contingent upon completing plans and the construction of a water system within the funds available to defendant.

'2. The court erred in making and entering its Findings of Fact No. 5 wherein the...