Carnahan Mfg. Co. v. Beebe-Bowles Co.

• Decision Date: 11 April 1916
• Citation: 80 Or. 124,156 P. 584
• Parties: CARNAHAN MFG. CO. v. BEEBE-BOWLES CO.
• Court: Oregon Supreme Court

156 P. 584

80 Or. 124

CARNAHAN MFG. CO. v. BEEBE-BOWLES CO.

Supreme Court of Oregon

April 11, 1916

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by the Carnahan Manufacturing Company against the Beebe-Bowles Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The defendant was a contractor for the erection of a building in Walla Walla, Wash., to whom the plaintiff agreed to furnish for use in the structure certain doors and interior trim under a written contract containing this provision:

"All details are to be made following out a reasonable interpretation of the scale drawing and specifications and are not to be more elaborate than shown thereon. All work is to be done according to the directions and to the satisfaction of the architects."

The complaint alleges, in substance, that after the making of this agreement it was modified in certain particulars principally in accordance with designs furnished by the plaintiff. It is averred generally that the plaintiff duly fulfilled all the terms and conditions of said contract on its part to be performed. Alleging a certain payment on account, the complaint demands judgment against the defendant for the balance, with interest. There is some confusion in the abstract, possibly owing to the fact that the answer was to the amended complaint while the case was tried on the second amended complaint and a stipulation that the previous answer should be considered a defense to the later pleading of the plaintiff. Literally, the answer admits the allegation of complete performance; but the case was presented and argued, and the bill of exceptions shows that it was tried in the court below as though the performance of the agreement was traversed, and the case will be so treated. The answer denies the modification of the contract except in a particular not now involved, and alleges that the materials furnished were not satisfactory to the architects, of all of which the plaintiff was informed prior to the commencement of the action. As to the approval of the architects, the reply is in substance that the plaintiff performed the work, and that if they rejected the same their conduct in that respect was arbitrary and without any foundation.

At the close of all the evidence, the defendant moved the court to strike out all the testimony relating to the architects' rejection of the trim on the ground that, having alleged in the complaint full performance of the contract, it would be a departure to aver in the reply that the architects had arbitrarily withheld their approval of the material furnished. The plaintiff then asked leave to amend its second amended complaint so as to include therein the allegation to the effect that it had performed the contract, except that it did not secure the approval of the architects because the same was withheld arbitrarily and without cause. The court allowed the amendment, and the case went to the jury on the pleadings as thus remodeled, all over the objection of the defendant.

The court instructed the jury to allow interest on the claim from the date the material was furnished, if they found for the plaintiff. It also gave the following instructions, which were excepted to by the defendant:

"If you find, after the original contract and specifications had been agreed to between the parties, the plaintiff subsequently presented to the defendant blueprints and details showing a different method of construction than was shown by the architects' original plan, and that the Beebe-Bowles people promised as soon as they received these proposed modifications they would check them over and let the other parties know what the conclusion of the Beebe-Bowles people would be regarding them, and if the Beebe-Bowles people received these modifications but did not make any answer to them, then such modification must stand as a modification of the original contract. That is in pursuance of what I understand to be a general rule that a modification of a contract submitted and taken under consideration must be answered. If it is not answered, it is agreed to.

"If you should find the architects did unreasonably or arbitrarily refuse to approve the work and that in all other respects the plaintiff performed the contract according to its terms and specifications as modified, if there were any modifications, then the plaintiff is entitled to recover, although the architects unreasonably and arbitrarily refused to approve the work. Under a provision of this kind, the plaintiff is not required to show the work was approved, if the architects' refusal to approve the work is without reason or arbitrary, or whimsical. * * * Where work is done substantially as required by the contract and specifications, the failure of the architect to approve the work does not prevent the plaintiff from recovery. That is merely another way of saying it is a question of fact whether or not the work was done according to the contract. To be sure, it was agreed the architects should determine that fact, but where the charge is that the architect just arbitrarily refused and turned up his nose, and did not exercise an honest judgment, did not really try to pass upon it, it is a question of fact for the jury."

The trial resulted in a verdict and judgment for the plaintiff and the defendant appeals.

Hugh Montgomery, of Portland (Platt & Platt, of Portland, on the brief), for appellant. R. Sleight, of Portland (Stapleton & Sleight, of Portland, on the brief) for respondent.

BURNETT J. (after stating the facts as above).

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