City of Portland v. New England Casualty Co.

• Decision Date: 13 April 1920
• Citation: 96 Or. 48,189 P. 211
• Parties: CITY OF PORTLAND FOR USE OF HANSEN v. NEW ENGLAND CASUALTY CO. ET AL.
• Court: Oregon Supreme Court

189 P. 211

96 Or. 48

CITY OF PORTLAND FOR USE OF HANSEN v. NEW ENGLAND CASUALTY CO. ET AL.

Supreme Court of Oregon

April 13, 1920

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by the City of Portland, for the use and benefit of J. W Hansen, against the New England Casualty Company and the Oregon Independent Paving Company and another. Judgment for plaintiff, and the named defendants appeal. Affirmed.

This is an action to recover upon a bond furnished to the city of Portland by a contractor, under a contract for the improvement of Nehalem avenue, said bond being executed under the requirements of section 6266, L. O. L., and section 162 of the charter of the city of Portland, for the protection of subcontractors, materialmen, and laborers employed under such contract. The beneficiary plaintiff is J. W. Hansen, whose claim is for hay and grain which he alleges were furnished to a subcontractor to feed the horses used in performing the work under the contract.

The defendants New England Casualty Company and Oregon Independent Paving Company filed a joint answer, wherein they admit the execution of the contract between the latter and the city, the execution of the subcontract with defendant Tomlinson, for the grading of Nehalem avenue, and the execution of the bond upon which the action is based. The remaining allegations of the complaint are denied. A trial was had, which resulted in a verdict and judgment for plaintiff, and defendants appeal.

Jay Bowerman, of Portland (W. B. Gleason and Carey & Kerr, all of Portland, on the brief), for appellants.

William P. Lord, of Portland, for respondent.

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

The defendants base their right to a reversal of the judgment upon two propositions: First, that the complaint does not state facts sufficient to constitute a cause of action; and second, that the trial court erred in denying their motion for a judgment of nonsuit.

The sufficiency of the complaint is challenged upon two grounds. The first is, that food for horses is neither labor nor materials, and that payment therefor is not included in the obligations of the bond. Upon the point thus raised there appears to be a conflict of authority in other jurisdictions but, so far as this court is concerned, the question has been definitely settled, and a conclusion reached which is contrary to defendants' contention, in the case of Clatsop County v. Fidelity & Deposit Co. of Maryland, 189 P. 207, decided by this court on April 6 1920, and not yet [officially] reported.

Defendants further urge that the complaint is insufficient, in that it is not alleged therein that Tomlinson, the subcontractor, entered upon or did any of the work he contracted to do. In the consideration of this proposition, we observe that the sufficiency of the complaint was not questioned by demurrer, and that--

"A verdict will cure formal defects in a pleading, such as an imperfect statement or the omission of formal allegations, and establishes every reasonable inference that can be drawn from the facts stated." Booth v. Moody, 30 Or. 222, 46 P. 884.

Keeping this rule in mind, we turn to the complaint, from which we quote the following allegations "That on the 13th day of March, 1913, defendant W. L. Tomlinson entered into an agreement and contract with defendant Oregon Independent Paving Company to perform all the labor necessary to complete the grading of Nehalem avenue from the west line of East Nineteenth street to the east line of Grand avenue,...