Dashnea v. Panhandle Lumber Co., Ltd.
Decision Date | 13 January 1937 |
Docket Number | 6398 |
Citation | 64 P.2d 390,57 Idaho 232 |
Parties | PETER DASHNEA, Respondent, v. PANHANDLE LUMBER CO., LTD., Appellant |
Court | Idaho Supreme Court |
CONTRACTS-MODIFICATION-CONSIDERATION-EVIDENCE-ACCORD AND SATISFACTION.
1. Evidence held to justify judgment against lumber company in favor of contractor for pond work for amount deducted from contractor's pay for wages of laborers advanced by lumber company in excess of maximum wage rate specified by contract on ground that lumber company had orally agreed to absorb wage increase and that there had been no accord and satisfaction by contractor's receiving and indorsing semimonthly checks which recited "in full settlement for labor."
2. Party who merely does that which in law he is bound to do cannot demand additional pay therefor and additional promise from other party is void and unenforceable.
3. Performance by one of parties to contract of something that he is not legally bound to do constitutes consideration for other's promise to modify terms of original agreement.
4. Where contract for performance of pond work for lumber company provided that lumber company should advance wages for contractor's employees, and fixed maximum wage rates contractor's increase of employees' wages at instance of lumber company held valid consideration supporting lumber company's promise to pay contractor for wages in excess of contract rate, paid employees and deducted from payment to contractor since payments by contractor were in addition to that which contractor was legally bound to pay and inured to benefit of lumber company which acquiesced therein.
APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Bert A. Reed, Judge.
Action on contract. Judgment for plaintiff. Affirmed.
Affirmed. Costs to respondent.
Gray & McNaughton, for Appellant.
There was no valid consideration shown by the evidence for the alleged promises of the increased price. (Williston on Contracts, vol. 1, sec. 130; Shriner v. Craft, 166 Ala. 146, 51 So. 884, 139 Am. St. 19, 28 L. R. A., N. S., 450; Muir v. Morris, 80 Ore. 378, 154 P. 117; Combs v. Burt & Brabb Lumber Co., 27 Ky. Law. Rep. 439, 85 S.W. 227.)
The alleged promise for want of consideration is a nudum pactum. (In re Riff, 205 F. 406.)
Plaintiff's claim for additional compensation is barred by an accord and satisfaction proved by defendant and not disputed by plaintiff. (Jordan v. Great Northern Ry. Co., 80 Minn. 405, 83 N.W. 391; Ennis v. Pullman-Palace Car Co., 165 Ill. 161, 46 N.E. 439.)
J. Ward and Arney, for Respondent.
Payment of less than is actually due is not an accord and satisfaction unless it clearly appears that it was the intention of both parties that the payment should operate in full payment of all claims and demands whatsoever. (Heath v. Potlatch Lumber Co., 18 Idaho 42, 108 P. 342, 27 L. R. A., N. S., 707.)
The general manager of the mill, Mr. Dimeling, and its superintendent, Mr. Kemp, were clothed with authority to make this particular modification.
The affirmative defense of full payment, interposed by defendant in the affirmative defense is deemed denied (I. C. A., sec. 5-812) (Allen v. Phoenix Assur. Co., 12 Idaho 653, 88 P. 245, 10 Ann. Cas. 328, 8 L. R. A., N. S., 903.)
April 29th, 1935, appellant and respondent entered into a written contract whereby respondent was to do the pond work for appellant and to receive therefor 20 cents per thousand feet, log scale, for logs brought to the bull-chain at the mill, and 15 cents per thousand feet for deadhead logs raised from the lake bottom. It was agreed that appellant would advance labor costs on the contract and that the wages of the men so employed should not exceed 42 1/2 cents per hour.
A general raise in all wages for sawmill and pond workers was made effective June 1, 1935, by the LLLL organization, and notices posted by appellant in and about its mill to that effect. Under this new wage scale respondent's men were paid at the rate of 50 cents and 52 1/2 cents per hour by appellant and the sums charged to respondent's account on the contract. Respondent himself was paid twice a month according to the terms of the written contract, after deducting the amounts paid his employees, and thirty days after the completion of the work he was paid the ten per cent holdback.
Respondent brought this action for the total cost of the increase in wages paid his employees, alleging an oral agreement between appellant and respondent whereby appellant would absorb the wage increase and the matter be adjusted. The jury returned a verdict for $ 545 in favor of respondent, and this appeal is from the judgment entered thereon.
Appellant's first specification of error is that the verdict of the jury is contrary to the court's instructions and is contrary to law, and the second specification of error is that the judgment is contrary to law in that the evidence is insufficient to support it.
Appellant first argues that no modification of the original contract was shown by the evidence. Upon this point the evidence is in conflict. Mr. Dashnea testifying (conversation with the manager, Mr. Dimeling):
(His conversation with the superintendent.)
(As to a former adjustment.)
Oliver Dashnea who was present at the conversation between his father and Mr. Kemp testified:
Mr. Sabin testified to the conversation between respondent and Mr. Dimeling as follows:
On the other hand, Mr. Kemp, the mill superintendent testified:
. . . .
. . . .
. . . .
(On cross-examination.)
Witness Moran, secretary of appellant, testified as to the amounts paid respondent under this contract, and with respect to the adjustment in 1933 said:
. . . .
(On cross-examination.)
(On re-direct.)
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...promise to do, or the doing of, what one is already bound by contract to do, is not valid consideration." Dashnea v. Panhandle Lumber Co., 57 Idaho 232, 238, 64 P.2d 390, 393 (1937) (quoting Indep. Sch. Dist. No. 6 v. Mittry, 39 Idaho 282, 289, 226 P. 1076, 1078 (1924)). Conversely, the doi......