Eggers v. Luster, 30669.

• Decision Date: 10 December 1948
• Docket Number: 30669.
• Parties: EGGERS et al. v. LUSTER et al.
• Court: Washington Supreme Court

200 P.2d 520

32 Wn.2d 86

EGGERS et al. v. LUSTER et al.

No. 30669.

Supreme Court of Washington

December 10, 1948

Department 2

Rehearing Denied Jan. 21, 1949.

Action by Frank Eggers and Eugene Sedille, doing business as Eggers & Sedille, and as Olympic Designers & Builders, against P. D Luster and others to recover a balance allegedly due for extra work on a building contract and to foreclose a mechanics' lien, wherein the defendants filed a cross-complaint. Judgment for the plaintiffs, and the defendants appeal.

Judgment affirmed.

HILL J., dissenting.

Appeal from Superior Court, King County; James T. Lawler, Judge.

Chas H. Graves, of Seattle, for appellants.

Ferguson Burdell & Armstrong, of Seattle, for respondents.

SIMPSON, Justice.

Plaintiffs instituted this action to recover from defendants P. D Luster and Gertrude Luster, a balance of $9,347.30 claimed to be due for extra work on a building contract, and to foreclose a mechanics' lien for the sum due.

In the complaint it was alleged that shortly prior to April 1, 1946, plaintiffs and defendant P. D. Luster entered into discussions concerning the construction of a building for the defendants; that an estimate was submitted by plaintiffs; that thereafter the parties entered into a contract which provided, among other things, that plaintiffs should construct a building for the defendants Luster, and be paid therefor on the basis of cost of labor and materials, plus ten per cent for overhead or supervision, and ten per cent for profit. It was also alleged that plaintiffs commenced construction of the building in April, 1946, and thereafter submitted periodic statements to defendants, based upon the cost-plus contract, and that defendants made partial payments based upon the statements presented.

The complaint further alleged that during the progress of the work defendants made several requests for changes in, and additions to, the original plans, and that such changes and additions were complied with by plaintiffs at a substantial increase in cost with the full knowledge and consent of the defendants. A general description of the changes and additions was set out in the complaint.

In addition, there were allegations to the effect that plaintiffs were required to perform extra work and expend additional sums of money because of the failure of defendants to remove certain heavy machinery and a building from the site where the new building was being constructed. Finally, it was claimed that the reasonable value of the services furnished by plaintiffs was in the sum of $25,125.64; that $15,778.34 had been paid by the defendants, leaving a balance owing in the sum of $9,347.30.

Subsequent to the filing of the complaint, the defendants made a motion for a bill of particulars. The motion, or request, was complied with by plaintiffs who filed an itemized statement of the additional costs resulting from changes in the original plans and specifications and those resulting from the failure of the defendants to remove the obstructions from the building site. This bill of particulars set forth the cost of the materials and labor furnished, and also contained computations showing the total amount claimed to be due for each item, including twenty per cent for supervision and profit.

In their answer the defendants denied that the work was done on a cost-plus contract, but asserted that the final contract between the parties was contained in a letter in which plaintiffs submitted an estimate of the cost of the proposed building. They admitted that the plaintiffs furnished certain labor and materials for the construction of the building, but denied that it was done pursuant to the cost-plus contract. They admitted the performance of one item of additional work, but denied the remaining allegations relating to additional work as contained in the complaint and the bill of particulars. Their cross-complaint alleged that on or about April 1, 1946, a contract was entered into between the parties providing for the construction of a building by plaintiffs for the price of $13,400; that upon completion of the building, the defendants made final payment in accordance with the contract; further that the defendants thereafter discovered that plaintiffs had failed to pay for certain materials and labor used in the construction of the building and the defendants were required to, and did pay, the sum of $1,164.21 in order to remove liens that had been filed by the people who furnished the materials and labor. It was finally alleged in the cross-complaint that the plaintiffs had constructed the building in a defective manner to defendants' damage in the sum of $2,460.

The reply put in issue the charges made in the cross-complaint.

The cause was tried to the court. At the conclusion of the trial, findings of fact and conclusions of law were entered by the trial court in favor of the plaintiffs; thereafter, judgment was entered in accordance with the findings and conclusions. This appeal followed.

The assignments of error are:

'1. The trial court erred in entering judgment against the Appellants, in favor of the Respondents.

'2. The trial court erred in entering certain parts of Finding of Fact VIII, allowing Respondents for extras, as follows:

"(a) For excavation of alley due

to nonremoval of owner's

machinery ................... $ 156.02

"(b) For brick wall in lieu of

concrete blocks .............. 2,513.64

"(c) For plumbing not required

on plans ....................... 501.02

"(d) For increase in size of

door ........................... 300.00

"(e) For delay in non-removal

of house ....................... 500.00

'3. And upon Appellants' cross-complaint, assign further error under Finding of Fact X, as follows: inadequate counter-damages on account of defective cement floor.

'4. Inadequate allowance (as an off-set to extras) for elimination of north wall of building.

'5. The court erred in entering Findings of Fact IV, and V.

'6. The court erred in entering the Conclusions of Law.

'7. The trial court erred in denying Appellants' Motion for New Trial.'

Respondents were co-partners engaged in business as building contractors under the firm name of Olympic Designers & Builders. Appellants own the North End Machine Works located near Lake Union in Seattle. They are engaged in the business of building heavy sawmill machinery. The building contracted for was an extension of the main plant for use as an assembly room--that is, as machine parts were made in the main plant, they were then to be removed to the new room and assembled into completed machines. The addition consisted of one large room with three exterior walls, a flat roof and cement floor about six feet below the level of the floor of the main plant. As finally constructed, it covered three lots. It was about ninety feet in length on the east side, one hundred fifteen feet on the south side, thirty-eight feet on the west side, and one hundred two feet on the north side. The north side of the building adjoined the older building owned by appellants, and a passage between the two buildings was constructed. The three remaining sides of the building were approximately twenty feet in height. The floor covered almost six thousand five hundred square feet, and it was constructed of concrete three and one-half inches thick.

Prior to the making of the contract, appellants gave respondents certain data as to the kind of a building they wanted to erect, the cost not to exceed ten thousand dollars. In March of 1946, respondents drafted a proposed building contract and submitted it to appellants for their consideration. The proposal provided for the construction of a building on a cost-plus basis--that is, the appellants would be bound to pay the entire cost of the building plus twenty per cent which would cover the overhead expense or supervision by the contractors, and a ten per cent profit. Appellants rejected the proposition at that time and stated that they would consider only a contract which provided for a definite sum bid. April 1, 1946, respondents submitted a written proposal which provided among other things that, 'This proposal includes all labor and materials required in connection with the two buildings also all engineering, building permits inspection, etc., except electrical work.' The estimate included the cost of the work as above outlined at $13,400. The proposal provided that no extras should be added to the price without the written consent of the owner, Mr. P. D. Luster. This bid was to become a part of the contract and be attached thereto. This proposal was signed 'Eggers & Sedille, Per Eugene E. Sedille, co-partners.' It was accepted in writing by P. D. Luster. Witness was B. E. Shellebarger. The parties entered into a written agreement dated April 1, 1946. This last agreement known in the litigation as Plaintiff's Exhibit 2, did not refer to the prior agreement. It did, however, refer to the building and provided that the respondents would erect it according to plans and...