Columbia Lumber Co. v. Bush

• Decision Date: 05 June 1942
• Docket Number: 28517.
• Parties: COLUMBIA LUMBER CO. v. BUSH et ux.
• Court: Washington Supreme Court

126 P.2d 584

13 Wn.2d 657

COLUMBIA LUMBER CO. v. BUSH et ux.

No. 28517.

Supreme Court of Washington

June 5, 1942

Department 2.

Action by the Columbia Lumber Company against C. W. Bush and wife to foreclose a materialman's lien, in which defendants filed a cross-complaint to recover damages for defective construction of a house. From a judgment dismissing the complaint and awarding defendants damages and a credit on account, plaintiff appeals.

Modified.

Appeal from Superior Court, King County; J. T. Lawler, Judge.

Lundin & Barto, of Seattle, for appellant.

Colvin Rhodes & Franklin, of Seattle, for respondents.

SIMPSON Justice.

Plaintiff instituted this action to foreclose a materialman's lien on defendants' property in Seattle, King county Washington.

The complaint alleged that at the oral request of defendant C. W Bush, plaintiff furnished from March 20, 1939, to December 4 1939, building materials to be used in the construction of a dwelling and garage; that the agreed value of the materials was $1,909.26, of which $320.41 had been paid, leaving due and owing a balance of $1,588.85; and that plaintiff filed its lien February 14, 1940.

In their answer and cross-complaint, defendants denied both the existence of a lien and an indebtedness in excess of $434. Defendants then alleged that plaintiff was engaged in a general contracting business of building houses; that December, 1939, plaintiff orally contracted with defendant Bush to construct a house and garage for $3,707; that it was agreed defendants would be credited with any sums saved in the purchase of materials, which amounted to $241.35; that defendants' indebtedness to plaintiff on the account was $175.69; and that the construction was to be financed by a loan from the Seattle-First National Bank and guaranteed by the FHA. Defendants then alleged that their house was defectively constructed to their damage of $650. Plaintiff in its reply denied the affirmative defense.

After the action was commenced, $434 was credited to defendants by reason of a payment by the bank, leaving $1,154.85 due for materials furnished.

A trial Before the court resulted in a judgment dismissing plaintiff's complaint and awarding defendants $300 in damages and $45.61 as a credit on the account. Plaintiff has appealed.

The assignments of error are (1) in finding that appellant was a contractor; (2) in the admission of parol evidence to vary the terms of written contracts; (3) in admitting in evidence a newspaper advertisement; and (4) in refusing to foreclose appellant's lien.

For convenience defendant C. W. Bush will be referred to as respondent. $The salient facts may be stated as follows: Mr. and Mrs. Bush were the owners of a lot in Seattle upon which they desired to build a home. During the latter portion of 1938, they contracted John Barker, a builder, relative to the proposed dwelling. Thereafter, Barker prepared a plan and an estimate.

In the early part of January, 1939, respondent visited the office of appellant, a retail lumber company, to secure advice and assistance in the construction of his house. Respondent showed the plan which Barker drew to V. G. Impett, at that time an employee of appellant, and stated that Barker had also prepared a building cost estimate. Respondent then informed Impett that the construction would have to be financed by a loan. Impett assured him that a loan could be obtained from the Seattle-First National Bank under the FHA. financing program. About three days later Barker called on Impett. After a discussion, a construction figure of $3,707 was decided upon. Thereafter Impett prepared on a stock form an instrument containing definite and detailed specifications and a construction contract. The contract was attached to the specifications and read as follows:

'Contract

'Seattle 1/31/39

'The undersigned contractor agrees to furnish all labor and material necessary to make the above improvements on property located at West 60' of Lot 28 less So. 120' For: C. Bush

'Price & Terms:

'The owner shall pay the contractor for the performance of the contract in current funds, the sum of $3,707.00, said amount to be paid in the following manner: 85% of one-third after one-third of the job has been completed and the Federal Housing Administration has made and approved its first inspection; 85% of one-third after two-thirds of the job has been completed and the Federal Housing Administration has made and approved its second inspection, and the balance thirty days after completion of the building and upon written approval and acceptance by the owner, and final inspection and approval by the Federal Housing Administration and upon satisfactory evidence of all lien waivers.'

The contract dated January 31, 1939, was taken from appellant's office by respondent and was thereater signed by him and his wife as owners and John Barker and Will Robinson as contractors. No contractor's bond was required. The contractors were unknown to appellant prior to the time Barker visited the office during the first part of January, 1939.

In order to obtain a loan, respondent, February 10, 1939, sent to the Seattle-First National Bank a written instrument entitled 'Application for Bank Loan.' The application stated that if the loan was granted the bank was authorized and directed to pay the net proceeds to appellant at its request as construction progressed. Thereafter the loan was approved and in turn the bank applied to the Federal Housing Administration for mortgagee insurance. A part of the bank's application to the FHA contained a 'Mortgagors' Statement' which was signed by respondents. In that statement they stated that their contractors were John Barker and Will Robinson.

Appellant commenced furnishing building materials March 20 and Barker and Robinson started construction March 22, 1939. Several weeks thereafter they ceased work. A conference, called by their attorney, was attended by respondent, the contractors and representatives of appellant corporation. Thereafter, a new contract, entered into May 5, 1939, provided:

'Contract

'Seattle Wn. 5-5-39

'The undersigned contractor agrees to furnish all labor and material necessary to make the following improvements on property located at 537 No. 70th St. for C. W. Bush.

'General Outline of Work to be Done and Specifications:

'All carpenter labor in connection with the construction of the house and garage at the above address. This work includes all the following work. All form work for concrete. All framing. All shingling. All Outside finish and trim. All Inside finish and trim including the building up of all cabinet work. All Floor laying--This does not include sheetrock. After all payments have been made on this contract of $665.00 the undersigned release all lien rights against property. While this contract is dated as above all work done and payments made previously to this date is included in this contract agreement. The contractors are to pay their own industrial insurance for labor on this contract.

'Price: All of the above for a cash price of Six hundred sixty five Dollars ($665.00)

'Terms: In progress payment of not more than 75% outstanding as job progresses. Final payment 30 days after acceptance by F.H.A.

'Accepted:

________ (Owner)

Frank Peterson (Contractor)

'C. W. Bush (Owner)

Will Robinson (Contractor)

________

John Barker

(Address of Owner)

(Address of Contractor)'

A week later the new contractors definitely abandoned the job.

Respondent asked Impett to hire W. R. Oliver to complete the carpenter work and Impett thereupon employed Mr. Oliver. Because of a delay Oliver refused to work on the job. Impett then, at the request of respondent, secured H. W. Scott, who signed a contract June 16, 1939, which provided that the contractor would furnish all labor and materials necessary to make the following improvements on respondents' property: 'All carpenter work to complete inside finish of house except hardwood floor laying. Also includes the building of 12 X 20 one car garage single constructed ex rear of lot.'

During the period of construction after Barker, Robinson, and Peterson had quit, both respondent and Impett procured various individuals to complete the work on the building.

September 27, 1939, the bank received the FHA's inspection report which stated: 'Basement to be waterproofed so that it will remain dry.' As a result of the basement condition the FHA refused to grant mortgage insurance.

The soil comprising respondents' property was very moist and to a large extent made up of quick sand. In fact, the excavation was undertaken three different times Before it was finally completed. The specifications for the basement wall called for an eight inch thickness. Instead, because of appellant's orders to the cement contractor, a six inch wall was built. Throughout the construction as well as at the time of the trial, water continued to seep into the basement.

Upon respondents' failure to pay the amount claimed by appellant to be due and owing, appellant filed a materialman's lien February 14, 1940, and thereafter commenced this action.

Appellant maintains that the oral contract with respondents required a furnishing of materials only; that the legal relationship between it and respondent was supplier and purchaser of building materials; that respondents' written construction contract with Barker and Robinson precluded the introduction of parol evidence to establish a different relationship; that since it is not a general contractor, liability does not attach for construction defects; and that the court erred in denying foreclosure of the materialman's lien.

Respondents on the contrary, contend that, in addition to furnishing materials, the oral...