Cooley v. Snake River District Improvement Co.

• Citation: 152 P. 1190,78 Or. 384
• Parties: COOLEY v. SNAKE RIVER DISTRICT IMPROVEMENT CO.
• Decision Date: 23 November 1915
• Court: Supreme Court of Oregon

152 P. 1190

78 Or. 384

COOLEY v. SNAKE RIVER DISTRICT IMPROVEMENT CO.

Supreme Court of Oregon

November 23, 1915

In Banc.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Action by George E. Cooley against the Snake River District Improvement Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The plaintiff had written a contract with the defendant for the construction and installation of a pumping plant for irrigation purposes, and now claims compensation for extras furnished under the terms of the agreement after having been paid, as he alleges, for the principal work specified by the delivery to him of certain coupon bonds of the defendant. The execution of the instrument is admitted, but the defendant alleges as a counterclaim damages for faulty construction of the system by the plaintiff, whereby it is damaged in the sum of $6,000 over and above the value of the extra work alleged by the plaintiff. It appears that at the inception of the undertaking, by agreement of the parties, the bonds were deposited with the First National Bank of Weiser, Idaho, to be delivered to the plaintiff on the completion of his contract. Replying affirmatively, the plaintiff states with great detail the history of a suit in the nature of interpleader brought by the bank against the parties to this action in the district court of the Seventh judicial district of the state of Idaho. In that proceeding the bank alleged substantially that the plaintiff here had demanded of it the surrender of the bonds, claiming to have completed his contract, and that the defendant here had notified it not to deliver them contending that the work had not yet been completed. It is stated that the Idaho court made an order directing the parties here to interplead, and that the plaintiff here set forth his claim of completing the undertaking and his right to have the bonds delivered to him that the defendant here answered the contention of this plaintiff in that suit denying the finishing of the work and asserting that the contractor, plaintiff here, had delayed construction of the plant beyond the time prescribed, so that the defendant district had lost the use of the same and was compelled unnecessarily to pay interest on its loan, whereby it was damaged in the sum of $2,500, for which it is entitled under the stipulation to a lien on the deposited bonds. The reply further states that the issue of the interpleader suit was adjudicated in favor of the plaintiff here and a delivery of the bonds to him was decreed by the Idaho court. A motion was made by the defendant here to strike out the affirmative matter of the reply giving the history of the proceedings in that litigation. This was denied by our circuit court. Error is predicated also of the refusal of the court to allow the defendant district to show faulty construction of the work. A verdict and judgment for the plaintiff for the full amount claimed ensued, and the defendant appeals.

John L Rand, of Baker, and W. H. Brooke, of Ontario (R. W. Swagler of Ontario, on the brief), for appellant. Ed R. Coulter, of Weiser, Idaho (Frank D. Ryan, of Weiser, Idaho, on the brief), for respondent.

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

The defendant argues that the question of faulty construction was not involved in the Idaho suit, and that it is privileged to litigate that question in counterclaim against the plaintiff's demand for extra work. On the other hand the plaintiff urges that his right to receive the bonds depended upon his showing completion of the undertaking according to its terms; that the defendant was bound to put in all grounds of its opposition to their delivery in the interpleader suit; and that, having alleged damages for failure to finish the plant in the time required, it cannot now allege another element of injury, namely, the imperfect condition in which the system was left. In other words, the plaintiff argues that the defendant had no right to split its cause of defense in the interpleader suit, and pleads the decree of the Idaho court in that proceeding as an estoppel against the present contention of the district.

It is true that a party is bound by a judgment on all questions which were actually litigated or might have been determined in the proceeding; but this...