Elliott Contracting Co. v. City of Portland

• Citation: 88 Or. 150,171 P. 760
• Parties: ELLIOTT CONTRACTING CO. v. CITY OF PORTLAND.
• Decision Date: 26 March 1918
• Court: Oregon Supreme Court

171 P. 760

88 Or. 150

ELLIOTT CONTRACTING CO. v. CITY OF PORTLAND.

Supreme Court of Oregon

March 26, 1918

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by the Elliott Contracting Company, a corporation, against the City of Portland. Judgment for plaintiff in part, and defendant appeals. Reversed.

By an agreement attached to its complaint and made part thereof the plaintiff, as contractor, convenanted with the city of Portland--

"that the contractor, for the consideration hereinafter named, does hereby agree to furnish all material and perform all of the labor necessary or required for the construction and full completion of the macadam pavement and all necessary trenches for storm water drains on that portion of the Hillside Parkway from Hamilton avenue entrance to Sheridan street, in full compliance with the plans and specifications therefor which plans and specifications are identified by the signatures of the parties and are hereby made a part of this agreement except where said98 specifications are modified by this contract in which case this contract shall prevail and to complete said improvement and all work thereon in a skillful and workmanlike manner, and to the satisfaction of the council of said city, on or before the 1st day of June 1914, at and for the unit prices following, to wit:

Excavation other than in trenches:

Solid rock ............... $2.50 per cubic yard

Common ..................... .40 per cubic yard

Trench excavation:

Solid rock ............... $2.50 per cubic yard

Common ..................... .40 per cubic yard

Macadam pavement:

Materials labor entire .. $ .50 per square yard

"It is further understood and agreed by the contractor that it will pay to the city out of any money that may become due for the computed work embraced herein, for so much base course stone now in stock piles on the drive as may be incorporated into the pavement at the rate of $1.00 per cubic yard."

The plans and specifications referred to in the excerpt above set out are not in the record before us. Whether they authorized the city engineer to change the grade or excavation or any other detail is not made to appear. The contract also contained this provision:

"The city engineer of said city shall decide all questions which may arise between the parties hereto relative to the true intent and meaning of any of the provisions or stipulations contained in this contract, or the amount, quantities character or classification of the work performed by the contractor under this contract, and his decision thereon shall be final and binding upon the contractor, subject only to modification or reversal by the council of said city."

The plaintiff alleges that it purchased from the city 2,906 cubic yards of base course rock at an agreed price of $1 per yard but that the city wrongfully overcharged the plaintiff with 3,814 cubic yards, the amount of such overcharge being $908. It is further stated in the complaint that:

"Defendant city as part of the consideration of said contract agreed to furnish plaintiff rock necessary for the base course of the said roadway at the agreed price of $1 per cubic yard for the construction thereof, and estimated that it had on hand approximately 5,000 cubic yards of such material; that the defendant city furnished to this plaintiff only 2,906 cubic yards of such base rock, and no more; the said city failed, neglected, and refused to furnish the balance of said base rock to plaintiff."

It is further alleged in substance that the city engineer modified the plans and specifications so that plaintiff was compelled to purchase more base course rock than would otherwise have been required, amounting to an excess of $1,004.25. The plaintiff also claims for an overplus of second course rock, screenings, sand, and detritus, $3,330, and extra excavation from ditches $1,500, all of which, with the item of $908, amounts to $6,742.25, for which it demands judgment. The pleading concludes with this allegation:

"That after the completion and performance of the said contract on behalf of plaintiff, the defendant, through the officer designated in said contract, inspected and accepted the work of this plaintiff and pretended to estimate and calculate the amount which plaintiff was entitled to recover therefor, but in the estimate and calculation the said officer of the defendant refused and neglected to allow plaintiff any of the sums herein specified on any of the items as herein set forth, and that the estimate and calculation of the said officer upon which sum was paid to plaintiff, as herein alleged, was erroneous, incorrect, and untrue in the particulars herein specified, and in that the officer representing the defendant refused to rectify or correct the same. That thereafter the plaintiff attempted to have the said matter rectified by the city council of the city of Portland, but the said city council failed, neglected, and refused, and still fails, neglects, and refuses to allow this plaintiff for any of the items herein specified or to pay the plaintiff therefor."

The defendant's general demurrer to the complaint was overruled. It is unnecessary to recite the text or substance of the answer or reply because the sole contention of the city on this appeal is that the complaint does not state facts sufficient to constitute a cause of action. The case was referred to a referee, who reported findings of fact and conclusions of law to the effect that the plaintiff was entitled to recover $1,220.10, with costs and disbursements. This conclusion was adopted by the court, and judgment entered accordingly, from which defendant appeals.

L. E. Latourette, of Portland (W. P. La Roche and Stanley Myers, both of Portland, on the briefs), for appellant. J. J. Fitzgerald, of Portland (Logan & Smith, of Portland, on the briefs), for respondent.

BURNETT, J. (after stating the facts as above).

The argument against the complaint is that the pleader does not state that the engineer was actuated by fraud, or had excluded items due the plaintiff to such an extent as to indicate bad faith. In the first place we note that not all of the contract is before us in that the terms of the...