Davis v. Altose, 30848.

• Decision Date: 03 March 1950
• Docket Number: 30848.
• Citation: 215 P.2d 705,35 Wn.2d 807
• Court: Washington Supreme Court
• Parties: DAVIS v. ALTOSE et al.

215 P.2d 705

35 Wn.2d 807

DAVIS v. ALTOSE et al.

No. 30848.

Supreme Court of Washington

March 3, 1950

Department 1

Rehearing Denied April 25, 1950.

Action by Charles H. Davis against Joseph J. Altose and wife, and/or Kenneth Altose and wife, to foreclose a mechanic's and materialmen's lien against dwelling. From a judgment of the Superior Court, Whatcom County, Ralph O. Olson, J., in favor of plaintiffs in the amount of $1,273.40, the defendants appealed and the plaintiffs cross-appealed. The Supreme Court, Donworth, J., held that the trial court except for certain items, had properly adjusted debits and credits but concluded that allowance for attorney's fees should be reduced from $800 to $650.

Judgment modified and affirmed as modified.

Sather Livesey & Kingsbury, Bellingham, for appellants.

Walter F. Fisher, T. B. Asmundson, Bellingham, for respondent.

DONWORTH Justice.

This is a mechanic's and materialmen's lien foreclosure action brought by a building contractor to recover the balance claimed to be due for the construction of a residence in Bellingham built pursuant to a written contract.

On March 14, 1946, plaintiff and defendant Joseph J. Altose (who is the father of defendant Kenneth Altose) entered into a written contract (prepared by defendants' attorney, R. W. Greene) wherein plaintiff agreed to construct a dwelling and garage in accordance with a certain floor plan and specifications. While the contract was executed by defendant Joseph J. Altose, the dwelling was to be occupied by his son, defendant Kenneth Altose, and both of them participated in giving directions to the contractor during its construction.

Under the terms of the contract, defendant Joseph J. Altose (sometimes referred to as the owner) agreed to pay to the plaintiff (sometimes referred to as the contractor) the sum of $8089.80 for the construction of the dwelling. The contract provided that the work should be started immediately upon the execution of the contract and should be substantially completed not later than June 1, 1946. It further provided that all materials should be new and both workmanship and materials should be of good and first class quality and all workmen and subcontractors should be skilled in their trades.

The contract contained the following provision: 'In the event that any change be made in any of the work, the same shall only be made upon written orders and the cost must be agreed upon in writing Before executing the work involved.'

Pursuant to this provision two changes were made in writing, one being dated April 2, 1946, with reference to additional work on the garage at an increased cost of $176 and the other dated July 6, 1946, providing for additional work upon the side porch at an increased cost of $147.50.

During the time that the house was being constructed, building materials were difficult to obtain and even though a priority permitting the use of certain materials had been issued by the W.P.B. because the house was to be occupied by a veteran, plaintiff encountered difficulty in locating suppliers who had them. He also testified that he was unable to obtain competent masons and that certain masonry work was performed by carpenters.

The house was not completed on June 1, 1946, and the construction proceeded (with some temporary stoppages) during the following summer and fall. Finally, on January 29, 1947, R. W. Greene, attorney for the owner, wrote the plaintiff as follows: 'Mr. Altose has requested me to notify you that unless you had the Victor Street house all finished by February 5 that he would take over and complete the work and that you were not to interfere with any work that he might be doing after February 5 but were to thereafter keep away from the premises.'

Plaintiff, being of the opinion that it was impossible to complete the work by February 5, 1947, ceased the construction of the house and did nothing further pursuant to the contract.

On that date plaintiff filed a claim of lien against the real property on which the house was located in which he asserted that the value of the materials furnished and labor performed was $12,745, on account of which he had been paid $5,250, leaving a balance of $7,495 owing to him.

Shortly thereafter plaintiff commenced this action for the foreclosure of his lien, asking for judgment in the amount of $4,746,71 and his attorney's fees in the sum of $600 if the suit should be contested. In addition, plaintiff claimed compensation for 'extras' on account of changes and alterations ordered by the defendants during the construction of the house, the cost of which, including overhead and profit, amounted to $2,010.49. He also sought to recover the sum of $299.90, which was alleged to be the amount of sales tax that the plaintiff was required to pay to the state of Washington.

Defendants answered admitting the execution of the contract and the payment of $5,250 to the plaintiff thereunder and denied that there was any balance owing to the plaintiff. It was affirmatively alleged that the defendants had paid out for the construction of the house a total sum of $9,348.05, which exceeded the contract price by $934.75, for which defendants were entitled to be reimbursed by the plaintiff. It was also affirmatively alleged that the plaintiff had failed to construct the house with new materials of first class quality and with workmen skilled in their trades, as required by the contract, and set forth the seven particulars in which the house failed to comply with the terms of the contract, specifying the amounts which defendants would be required to expend because of plaintiff's failure to properly perform his contract. The defendants asked for judgment against the plaintiff in the sum of $1,603.75.

Plaintiff's reply put in issue the material allegations of the affirmative matter contained in the answer and alleged that '* * * many changes were made in the plans, specifications and materials to be used in the construction of the buildings by mutual agreement of the Parties and/or acquiescence thereof from the very inception of the work and until the completion thereof, resulting in much additional work and/or materials from that required or necessary as per said contract and specifications entered into, with the agreement and understanding that the Defendants would pay the Plaintiff for such additions, alterations or changes resulting in added work and/or materials, plus a reasonable profit thereon, and that likewise the Defendants would be credited for changes or alterations which would result in less labor and/or materials than required or necessary by the terms and conditions of the original contract and specifications.'

Pursuant to a demand of the defendants, plaintiff filed a bill of particulars setting forth fifty-two separate items of changes or extras caused by the acts of the defendants having a total value of $2,598.91.

The trial of the suit lasted four days and at the conclusion thereof the court rendered an oral decision covering twenty pages of the statement of facts in which the court reviewed the conflicting testimony with respect to each of the fifty-two items set forth in plaintiff's bill of particulars. Regarding the principal issue in the case the trial court summed up the situation as follows:

'On the issue of the main case, we find a rather difficult situation as far as both of these parties are concerned. They started out to build this house, and had a contract prepared. The contract called for certain, definite things and modified that in specifications, and in certain parts of the contract we find rather ambiguous and incomplete descriptions of what should be done, but, in considering the case, I have considered that they did start with this contract, and that variations from its terms have to be considered pretty much as extras. The contract was prepared by Mr. Greene on behalf of the defendants. They kept Mr. Greene familiar with the progress of the work. He was handling disbursements and other matters for them. It seems that, in the construction of the contract, the defendants are to be considered as the ones who prepared the contract and submitted it, and should have included those things which it is, some time later, said that the contract intended. Another thing which I have thought in connection with this matter is that Mr. Davis, as the contractor, assumed certain responsibilities for completion, and that certain losses, such as delays because of weather and material and general conditions prevailing at the tim, difficulty in obtaining material, the increase in price in the labor market and in the material market, were things which he, as a contractor, was obliged to take into consideration and, if they are to his detriment, he has to bear the loss, just the same as if he would benefit from a falling market in which case he would have made more money on the job.

'Just in passing, I think we can certainly see that was not the time to build a house, either from the owner's or the contractor's standpoint. The couldn't get what they wanted, and when they did get it, it was inferior in quality and workmanship.

'I have gone over the items in plaintiff's bill of particulars, and also in defendants' list of payments, and we can consider them individually, if you like, or I can give you the result of the computation which I made, based upon a computation of each individual item. Now, I realize that, with regard to each item, there is a dispute in the facts. I have tried to consider them with the two thoughts which I previously mentioned in mind, and have tried to conclude where I thought the evidence indicated the expense of each item should fall.'

Thereafter the court entered findings of fact in which the...