Dixon & Oliver v. Parker, Moran & Parker

• Decision Date: 04 May 1918
• Docket Number: 14469.
• Citation: 172 P. 856,102 Wash. 101
• Court: Washington Supreme Court
• Parties: DIXON & OLIVER v. PARKER, MORAN & PARKER et al.

172 P. 856

102 Wash. 101

DIXON & OLIVER v. PARKER, MORAN & PARKER et al.

No. 14469.

Supreme Court of Washington

May 4, 1918

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Dixon & Oliver, partners, against Parker, Moran & Parker partners, and others. From judgment for plaintiff against the named defendants, but in favor of the other defendants plaintiffs appeal. Modified and affirmed.

R. L. Edmiston, of Spokane, for appellants.

Cannon & Ferris, of Spokane, for respondents.

ELLIS C.J.

This is an action at law to recover moneys claimed to be due on account of work performed by plaintiffs Dixon and Oliver for defendants Parker, Moran & Parker. The facts are as follows:

The city of Spokane in February, 1912, passed an ordinance requiring the Northern Pacific Railway Company to separate the grade of its tracks from that of the street grades within a portion of the city by elevating its tracks and changing the grade of certain streets. The ordinance required the railway company to bear all the expense of making the change and do all the work except the replacing of such sewers and city utilities as were made necessary by changes in street grades. All of the streets from and including Division and Sprague at their intersection and west of it to Seventh avenue were affected by the change. The right of way of the railway company is 400 feet wide, except where reduced to 200 feet under the decision of the Supreme Court of the United States in the Ely Case, 197 U.S. 1, 25 S.Ct. 302, 49 L.Ed 639. To make the grade separation it was necessary to re-establish the grades of the streets across the right of way, and for a considerable distance beyond. The railway company was required to excavate within its right of way, and in some cases without its right of way, and to replace the streets at the new level in good condition. The ordinance is very lengthy and explicit as to how the work shall be done, and closes with a requirement that the railway company shall accept in writing the terms of the ordinance within 45 days after its passage, failing which the ordinance shall be null and void, unless time be extended by the city council. It is conceded that the terms of the ordinance were so accepted by the railway company. Because of certain litigation touching the city's power to require the grade separation ( Holland v. N. P. Ry. Co., 214 F. 920, 131 C. C. A. 216), the actual work was not commenced until October, 1914. A contract was then entered into by the railway company, with W. J. Hoy doing business as W. J. Hoy Company, by which Hoy undertook to do the entire work, with certain minor exceptions, as general contractor. Under this contract the work was to be paid for by the railway company according to schedules made a part of the contract. Hoy sublet different parts of the work to subcontractors, among them Parker, Moran & Parker, partners, who undertook the work of excavation. This contract was executed on December 18, 1914. Parker, Moran & Parker in turn sublet to the plaintiffs Dixon and Oliver by contract dated January 7, 1915, the drilling and blasting, but not the excavation and removal of the solid rock necessary to be removed from the right of way and streets affected, from Washington street east in order to place the streets in their new elevation. From Washington street west the work was done by others. The city through its engineer had general charge of the street changes so far as to direct what changes should be made and determined what would constitute a compliance with the ordinance. The city retained the right to construct the sewers either by day labor or contract, but the railway company was required by the ordinance to pay for such work.

Proceeding under their contract, plaintiffs undertook the performance of their contract with Parker, Moran & Parker. The railway company filed no bond, as required by section 1129 of Mechanic's Lien Law. Hoy gave a bond to the railway company conditioned for the faithful performance of his contract and to pay all obligations by him assumed thereunder. It appears that Parker, Moran & Parker agreed to give Hoy a bond, but failed to do so. Plaintiffs Dixon and Oliver gave a bond to Parker, Moran & Parker, but it does not appear in the record. No bond was filed in the office of the county auditor. Under the contract of Hoy with Parker, Moran & Parker, Hoy was to pay 90 cents per cubic yard for solid rock excavation, of which the drilling and blasting was, of course, a part. Under their contract with Parker, Moran & Parker plaintiffs were to be paid for the blasting 60 cents per cubic yard. These payments were to be made, the first on estimates received by Hoy from the railway company as to excavation, and the second on estimates received by Parker, Moran & Parker from Hoy on his estimate of the work done. The first controversy arose between Parker, Moran & Parker and plaintiffs in the latter part of May when the first estimate for the April work was given. Plaintiffs claimed that they were then entitled to $2,000. Parker, Moran & Parker figured plaintiffs' part of the estimate at $806.40, which plaintiffs refused. Plaintiffs appealed to E. J. Cannon, attorney for the railway company.

As to what occurred and what agreement was then made the evidence is in the sharpest conflict. Plaintiffs claim that Cannon then promised that the railway company would see that they were paid the money then and thereafter to become due for their work, and directed them to take the matter up with Hoy's office; that they then went to Hoy's office, where Hoy's purchasing agent and superintendent also agreed to see that they were paid and, in effect, guaranteed future payments. Cannon and Hoy's superintendent and purchasing agent all testified that the only promise made was to endeavor to secure orders from Parker, Moran & Parker for plaintiffs' payments on future estimates, so that plaintiffs would receive their pay directly from Hoy and in Hoy's office. Whatever the agreement it is admitted that at that time Hoy paid $1,000, which, with the $806.40 paid by Parker, Moran & Parker, enabled plaintiffs to meet their current pay roll. Subsequently plaintiffs also received from Hoy in Hoy's office an estimate of $6,800 in June, and a further estimate of $8,000 in July, 1915. These last payments, however, were made on receipts approved by Parker, Moran & Parker, thus corroborating in a measure the claim of Hoy and the railway company as to what the agreement was. Further payments were refused by Hoy on the ground that Parker, Moran & Parker had canceled and countermanded the order.

We find it unnecessary to set out the voluminous pleadings. It will suffice to say that the court sustained a demurrer of the city to the complaint, and the cause was tried to the court without a jury as against the other defendants. The court, upon appropriate findings of fact and conclusions of law, adjudged that plaintiffs recover from Parker, Moran & Parker a balance of $10,559.20, with 6 per cent. interest from the date of the judgment, but that plaintiffs take nothing against the defendants city of Spokane, the Northern Pacific Railway Company, and the W. J. Hoy Company, as to each of which defendants the action was dismissed without day. Plaintiffs Dixon and Oliver appeal.

Appellants contend that the city's demurrer to their complaint was erroneously sustained. It is urged that the city was liable to them under the terms of Rem. Code, § 1160, because it failed to take from the railway company the bond required by sections 1159 and 1161 for the protection of laborers, mechanics, subcontractors, and materialmen. It is argued that the work of eliminating the grade crossings of the railroad tracks was a public work done on behalf of the city; that the ordinance requiring the separation, when accepted by the railway company, was the exercise of a contractual power not the police power; that, therefore, the work falls within the purview of the statute making the city liable because of its failure to exact the statutory bond required to be taken from persons doing work for it under contract. If the premises were sound, the conclusion would be irresistible. But the premises are not sound. Appellants' minor premises, that the relation between the city and the railway company created by the ordinance was purely contractual, is based mainly upon a decision of the Illinois Supreme Court, which contains some language which supports that contention, and much which does not. City of Chicago v. Jackson, 196 Ill. 496, 63 N.E. 1013, 1135. The sole question there involved was as to the right of a property owner, whose property had been damaged by a change of street grade necessitated by a grade separation of a street and railroad, to recover compensation from the city. The court, after intimating somewhat doubtfully that the ordinance was contractual rather than an exercise of the police power, uses language which plainly shows that whether the ordinance was contractual or not was wholly immaterial as between the city and the owner of abutting property. The court said:

'It seems to be thought by counsel for the city that inasmuch as the railroad company has been lawfully compelled to abandon its tracks on the street and so elevate them as to overcome the grade crossing, at great loss and expense to it, without compensation, neither should the plaintiff, who has suffered loss on account of the construction of the same work, be allowed to recover damages therefor. The position, upon first impression, seems plausible, but when carefully considered is clearly untenable. The relations of the parties to the city are entirely different. That which called for the exercise of the police power by the

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