Duhamel v. Port Angeles Stone Co.

• Decision Date: 24 June 1910
• Citation: 109 P. 597,59 Wash. 171
• Parties: DUHAMEL et al. v. PORT ANGELES STONE CO. et al.
• Court: Washington Supreme Court

109 P. 597

59 Wash. 171

DUHAMEL et al. v. PORT ANGELES STONE CO. et al.

Supreme Court of Washington

June 24, 1910

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by E. J. Duhamel and another, partners doing business as Megrath & Duhamel, against the Port Angeles Stone Company and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Million & Houser, for appellants.

F. A Noble and McClure & McClure, for respondents.

PARKER J.

By this action the plaintiffs seek to recover from the defendants damages claimed to have resulted from a failure of the Port Angeles Stone Company to furnish stone for the construction of the United States Post Office building in Seattle, in compliance with a contract between the Port Angeles Stone Company and plaintiffs, the latter having the contract for the construction of the building for the United States. The case was tried by the court without a jury, and resulted in findings and judgment in favor of the defendants. The plaintiffs have appealed.

The facts found by the learned trial court, so far as we deem it necessary to notice them, are, in substance, the following The contract here involved, among other things, provides 'This indenture made and entered into this 8th day of March, A. D. 1905, by and between the Port Angeles Stone Co., a corporation, party of the first part, and E. J. Duhamel and John Megrath, copartners as Megrath & Duhamel, parties of the second part, witnesseth: Whereas, the parties of the second part have heretofore entered into a contract with the United States government for the erection and completion of the United States customhouse, courthouse and post office building, in the city of Seattle, and are now engaged in the performance of said contract; and whereas, under said contract and the specifications for said building as now existing. Chuckanut sandstone is now specified and required for the exterior of all the walls of the building above the granite base, but the party of the second part is endeavoring to obtain a change in said specifications, by which Port Angeles stone, quarried from quarries owned by the parties of the first part, will be substituted for said Chuckanut stone: Now, therefore, the party of the first part hereby covenants and agrees to and with the parties of the second part that, if said change in said specifications shall be made, it will sell and deliver to the parties of the second part all stone required for the erection and full completion of the exterior of all of the walls of said building above the granite base, as shall be required by the specifications for the erection and construction of said building, being all of the material now shown on said plans and specified in said specifications as now existing as Chuckanut sandstone. The said plans and specifications for the said building as now existing and as the same may be hereafter changed and modified, are hereby declared to be a part of this contract, and in all respects binding upon the party of the first part. All of the stone must be delivered on scows or boats at Port Angeles in such quantities as may be required, not to exceed five hundred cubic feet per day. The stone to be equal in all respects to the samples furnished and submitted to the treasury department at Washington, and to the satisfaction of the supervising architect. The party of the first part shall begin to deliver said stone within 30 days of notice from parties of the second part that the stone has been accepted for said building, and the party of the first part shall continue the delivery of said stone in such quantities as required by the parties of the second part, not exceeding five hundred cubic feet per day, so as to cause no delay in the prosecution of the work of the building. * * *' On March 9, 1905, in pursuance of the terms of this contract, the Port Angeles Stone Company gave to appellants a bond securing the faithful performance of the contract with the respondent United States Fidelity & Guaranty Company as surety thereon. Thereafter the United States consented to the change in the specifications of the building contract, by which Port Angeles stone was substituted for Chuckanut stone, and on April 5, 1905, appellants duly notified the Port Angeles Stone Company of such change, the contract thereby becoming effective. Immediately thereafter, and until August 4, 1905, the Port Angeles Stone Company kept a large force of men continuously at work at its quarry opening and developing the same. In order that the Port Angeles Stone Company might from time to time comply with the contract, it was necessary that the appellants should furnish it with orders specifying the quantities of stone required and the dimensions thereof. The appellants did not require of the Port Angeles Stone Company the shipment or delivery of any stone as provided by the terms of the contract. On August 1, 1905, appellants entered into a contract with the Chuckanut Stone Company, by which they agreed to purchase from that company stone to be used in the construction of the building providing the substitution of Chuckanut stone for Port Angeles stone would be consented to by the United States. This change was consented to by the United States and the building finally constructed with that stone. The appellants kept the Port Angeles Stone Company in ignorance of their negotiations with the Chuckanut Stone Company, and encouraged the Port Angeles Stone Company to believe that its stone would be used in the construction of the building if there was a reasonable prospect that its quarry could supply stone of sufficient quality and quantity therefor, and there is no satisfactory proof that there was not such reasonable prospect. The Port Angeles Stone Company did not refuse to perform any of the obligations imposed upon it by the terms of the contract. On August 4, 1905, appellants served upon the Port Angeles Stone Company a written notice claiming it was in default under the contract, and that it had failed to deliver stone as agreed, also notifying it 'that, because of said default, we will be compelled to purchase stone for the building elsewhere; any you are further notified that, because of the facts aforesaid, we hereby terminate said...