Brear v. Klinker Sand & Gravel Co., 36008

• Decision Date: 30 August 1962
• Docket Number: No. 36008,36008
• Court: Washington Supreme Court
• Parties: Walter D. BREAR, Appellant, v. KLINKER SAND & GRAVEL COMPANY, a corporation, Respondent.

Page 443

60 Wn.2d 443

374 P.2d 370

Walter D. BREAR, Appellant, v. KLINKER SAND & GRAVEL COMPANY, a corporation, Respondent.

No. 36008.

Supreme Court of Washington, Department 2.

Aug. 30, 1962.

Rummens, Griffin, Short & Cressman, Seattle, for appellant.

LeSourd, Patten & Adams, Max D. Crittenden and Stanley B. Allper, Seattle, for respondent.

DONWORTH, Judge.

This action arose out of the alleged breach of a written contract, executed by the parties in January, 1958, wherein appellant agreed to furnish the necessary labor and equipment to crush 60,000 cubic yards of rock at respondent's gravel pit on Maury Island at ninety cents per yard. Respondent agreed to furnish sufficient material to produce at least 60,000 yards of crushed rock by the end of the year 1958 with an option to appellant 'for crushing in 1959.' It failed to produce to the minimum agreed yardage, the amount of the shortage being one of the issues of fact in this case.

No November 27, 1959, appellant instituted this action against respondent seeking $12,719.70 damages because of respondent's failure to furnish the full 60,000 yards for crushing. This item was later voluntarily reduced by appellant to $9,000.

Respondent, in its answer, admitted the execution of the contract, but denied most of the other allegations of the complaint. Respondent affirmatively pleaded an accord and satisfaction concerning appellant's claim and, also, in its counterclaim, asserted a breach of the contract by appellant, which allegedly caused respondent damages in the sum of $7,200.

The cause was tried to the court sitting without a jury. At the close of all the evidence, the trial court rendered its oral decision to dismiss both the complaint and the counterclaim. Thereafter, appellant's motion for a new trial was heard and denied. From the judgment entered in accordance with the decision, this appeal has been taken.

Since the two principal questions raised by the nine assignments of error depend for decision on factual issues, we set forth the following findings of fact entered by the trial court:

'II. That on or about January 25, 1958 the plaintiff and the defendant entered into a written contract, a copy of which is attached to the complaint on file herein, by the terms of which the plaintiff furnished labor and equipment in order to crush rock for the defendant and this contract, among other things, contained the following statement:

"The contractor herewith guarantees a minimum of 60,000 c. y. for 1958, with an option to subcontractor for crushing in 1959.'

'III. That pursuant thereto the plaintiff, in April of 1958, commenced to crush rock for the defendant and did continue crushing rock for the balance of the calendar year 1958; that defendant was unable to supply the plaintiff with sufficient material to crush 60,000 cubic yards of rock in 1958 but did supply plaintiff with sufficient rock to enable plaintiff to crush a substantial portion of the 60,000 cubic yards in 1958 and plaintiff was paid for crushed rock as he delivered it.

'IV. That plaintiff would have suffered a loss even if plaintiff had crushed 60,000 cubic yards in 1958 and plaintiff has not established what it would have cost the plaintiff to crush the balance of the rock between what he crushed and 60,000 cubic yards in 1958; and plaintiff has not established what loss, if any, plaintiff suffered nor established that he suffered any loss from defendant's failure to supply plaintiff with sufficient rock to crush 60,000 cubic yards in 1958.

'V. That plaintiff continued to crush rock during the first part of 1959 and received payments by check from defendant in 1959, and on or about March 26, 1959 the final amount owing to plaintiff by defendant was in dispute and the defendant, as a debtor, offered to settle any and all claims between plaintiff and defendant and did tender to the plaintiff a check dated March 26, 1959 in the amount of $600.00, a copy of which is attached to the answer on file herein, and this check was given by defendant to plaintiff in full settlement of all disputed claims between the parties and contained on the reverse side thereof the following endorsement:

"Payment in full for crushed rock and constr. shed.' That defendant's offer of settlement was agreed to by plaintiff accepting said check in settlement of all accounts owing and the settlement was completed when plaintiff cashed the check and received the money therefor; and plaintiff never did nor did he offer to return the money from said settlement. That settlement by this check being offered, accepted and cashed in full settlement constituted an accord and satisfaction in fact between the parties in relation to all claims and counterclaims between the parties as alleged in plaintiff's complaint and in defendant's cross complaint.'

There is no question that respondent was in breach of the contract in failing, by at least 11,633 cubic yards, to supply the minimum of 60,000 yards of rock to crush guaranteed by the contract.

However, the trial court found in favor of respondent regarding two of its affirmative defenses, either of which rulings, if not in error, is sufficient to support the judgment dismissing appellant's action. The first finding was that the acceptance of a check for $600, endorsed 'payment in full for crushed rock and const. shed,' constituted an accord and satisfaction, in full settlement of all claims which appellant might have against respondent. The second finding was that appellant was barred from recovery because he did not produce sufficient evidence of the damage he suffered as a result of respondent's breach of the contract.

Appellant contends, first, that the $600 check did not constitute an accord and satisfaction.

The trial court found (finding No. 5, quoted above) that appellant crushed rock for respondent in 1959, and, for this work, was paid by check in excess of $9,000. Referring to the remainder of the rock crushed by appellant in 1959, Mr. Klinker, president of respondent company, testified:

'A. There was a small pile of crushed rock left there after we had loaded out, and we came to some estimate of what was there, and we both agreed on it; I mean Mr. Hartman, Brear and myself. Q. And that was paid for at 90 A. Yes. Q. And then on top of that there is a construction shed? A. $200 for the construction shed. Q. Those two items come to $600? A. Yes. Q. You had agreed on the amount of the construction shed? A. Yes. Q. And how many yards there were of crushed rock, also? A. Yes.'

There was no testimony that appellant's claim regarding the failure to furnish the guaranteed minimum of 60,000 cubic yards in 1958 was even discussed at the time of execution and delivery of the check. Mr. Klinker further testified that he, at the time, thought that the check was 'for anything he [appellant] thought he had coming.'

Mr. Hartman, vice president of respondent company, testified:

'A. I said at the time, 'That is in settlement now, Walt, for everything up to date; is that correct?' Q. What did he answer? A. 'That is fine with me.' Q. Did you hear anything further from him in terms of claims of any kind, either in writing or by conversation? A. None from that date on. Q. Did you consider this as a settlement of any counter claims that you might have against him? A. Naturally. You might call it that. We had a misunderstanding to the extent that I just felt this was the time to settle it for all. We won't have any counter claim if we had this settled.'

The foregoing is the only testimony which could be said to indicate that the check was intended as an accord and satisfaction. There is no evidence that appellant believed, or had reason to believe, that the check was intended as a settlement of any claims he might have for breach of contract in 1958.

Furthermore, at least two of respondent's witnesses agreed, and no one disputed, that the check for $600 was given in payment of an agreed price for specific items--the construction shed valued at $200, and $400 worth of crushed rock at 90 cents per cubic yard, which was then on the stockpile and had not theretofore been paid for. As shown by the plain language of the endorsement, the check paid only for these two items, which totalled $600.

In summary, there is no evidence in the record to indicate that the check was intended as anything but payment for (1) rock crushed in 1959, and (2) the construction shed. There is no evidence that respondent's breach of the 1958 contract was even discussed at the time. The only testimony in the record, from witnesses for both parties, indicated that the check was in payment for specific items which bore no relationship to respondent's breach of the 1958 contract.

We conclude that there is not even a scintilla of evidence, much less substantial evidence, to support a finding that 'everything up to date' and 'anything he thought he had coming' (which otherwise might have been ambiguous) had any reference to appellant's claim for breach of contract. Nor is there any evidence that the term 'crushed rock' in the endorsement on the check referred to the 1958 rock-crushing agreement or any claims regarding respondent's breach of that agreement. In fact, if the term could be considered ambiguous at all, all of the evidence which has any bearing on the meaning of the term indicates that the term 'crushed rock' referred to the pile of crushed...