Driver v. Galland

• Decision Date: 27 June 1910
• Court: Washington Supreme Court
• Parties: DRIVER v. GALLAND et al.

109 P. 593

59 Wash. 201

DRIVER v. GALLAND et al.

Supreme Court of Washington

June 27, 1910

Department 2. Appeal from Superior Court, King county; Boyd J. Tallman Judge.

Action by George Driver against Bonham Galland and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Shank & Smith, for appellants.

Hastings & Stedman, for respondent.

DUNBAR J.

This is an appeal from the judgment of the court founded on a verdict of the jury, in an action brought by the respondent against the appellants as executors to recover an alleged commission of 10 per cent. of the cost of construction of a large business block in the city of Seattle as compensation pensation for supervising the construction of said building. The complaint alleged that Caroline Kline Galland, through her attorney in fact, Bonham Galland, employed the respondent to furnish estimates for the construction of the building according to certain plans; that these estimates were furnished and aggregated a certain amount which was afterwards reduced to a certain other amount; that Caroline Kline Galland, personally and acting through her duly authorized agent, Bonham Galland, employed the respondent to construct said building for the agreed compensation of 10 per cent. of the cost of construction; that shortly thereafter and on August 19, 1905, a written contract was entered into by the terms of which the respondent agreed to furnish all material, pay all labor, and construct said building for the sum of $85,450; that about one week thereafter, by mutual consent between the respondent and Caroline Kline Galland and Bonham Galland, her agent, it was agreed that the written contract should be abrogated and set aside, and that the work should proceed upon a 10 per cent. basis; that the contract was, in fact, set aside and held for naught, and that the work did proceed upon a percentage basis, sets forth that certain extras amounting to $25,793.47 were ordered, and makes demand for a percentage on such extras. The appellants admitted that the respondent furnished the estimates as alleged, and admitted that they consented to $11,800 of extras, but denied that they ever agreed to any more than this, and denied that any other contract was ever made except as set forth in the written contract, or that the same was ever abrogated or set aside. Respondent recovered judgment in the sum of $11,510.57. After the verdict, appellants filed a motion for judgment non obstante veredicto, which was overruled, and, motion for new trial being overruled, appeal followed.

The errors assigned are that the court erred in admitting certain oral testimony of negotiations prior to the written contract, and erred in admitting the testimony in relation to the prior estimates and in refusing to grant appellants' motion for judgment non obstante veredicto, for the reason that there was no evidence showing, or tending to show, the authority of Bonham Galland, as agent, to abrogate the written contract for the construction of the building or to substitute a different and oral agreement therefor. As to the first assignment, a portion of the work was done before the written contract was entered into, and, of course, the testimony objected to was competent. So far as the second error is concerned, while we do not deem it material, yet, in any event, the main portion of the testimony, in relation to the fact that the estimates did not include profit for the respondent, was proven at length by the testimony of the respondent without objection on the part of the appellants, and the subsequent testimony objected to was merely cumulative.

The main question in the case is the one raised by the third assignment of error, viz., that there was no evidence to show, or tending to show, the authority of the agent to abrogate the written contract. A great many principles of law are announced by the appellants, and a great many cases cited to sustain them. The correctness of these principles of law contended for cannot be questioned but, as we view this case, they are not applicable. Stripped of all immaterial...