Gillespie Land & Irrigation Company, a Corp. v. Hamilton

• Decision Date: 12 February 1934
• Docket Number: Civil 3314
• Parties: THE GILLESPIE LAND & IRRIGATION COMPANY, a Corporation, Appellant, v. E. L. HAMILTON, Appellee
• Court: Arizona Supreme Court

29 P.2d 158

43 Ariz. 102

THE GILLESPIE LAND & IRRIGATION COMPANY, a Corporation, Appellant, v. E. L. HAMILTON, Appellee

Civil No. 3314

Supreme Court of Arizona

February 12, 1934

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dave W. Ling, Judge. Judgment affirmed in part and reversed in part, with directions.

Messrs Silverthorne & Van Spanckeren, for Appellant.

Mr. H M. VanDenburgh, Messrs. Cunningham, Carson & Gibbons and Messrs. Langmade & Seed, for Appellee.

OPINION

LOCKWOOD, J.

E.L Hamilton, hereinafter called plaintiff, brought suit against Gillespie Land & Irrigation Company, a corporation, hereinafter called defendant, on two causes of action. Defendant answered and cross-complained. The case was tried to a jury, which returned verdicts on both of plaintiff's causes of action in his favor and on the cross-complaint in favor of defendant, and judgment was rendered in accordance with the verdicts. After a motion for new trial was made by defendant and overruled, this appeal was taken by it.

The complaint sets up two causes of action, the first alleging that there was a written contract between the parties for the construction of a canal at an agreed price of 10 1/2 cents per cubic yard, and that in accordance with the terms thereof plaintiff excavated a certain amount of earth, for which work there was still due him, under the contract, the sum of $8,300.06. The second cause alleged that, at the completion of the work done under the contract, the parties entered into an oral contract for further work at the same price, and that plaintiff had done excavation thereunder, for which there was still due him the sum of $12,313.45.

The answer of the defendant, in substance, was that it had entered into a certain written contract with plaintiff for the construction of a canal, according to plans, specifications and surveys to be furnished by the defendant, and that in pursuance of such contract the plaintiff entered upon the work and continued therein until the fourth day of December, 1931, at which time he abandoned it without completing it as provided by the contract. It further alleges that the plaintiff in the doing of such work as he did finish had incurred various indebtednesses for materials and labor which had become liens against the property of defendant and which it would be obliged to pay, and that what work was done was not according to the specifications of the contract, either in manner or amount, and that no vouchers showing the work free from lienable claims had been furnished by plaintiff from time to time, as required by the contract, and that the work had never been completed or a certificate of completion issued by defendant's engineer, as also required by the contract. As a counterclaim it set up that the work was not done according to the plans, specifications and terms of the contract; that it failed by 800 feet of reaching the place where it was to be finished; that it was not completed within the time provided by the contract, or at all, and that to complete it according to the contract would cost $4,000; that the failure to complete in time had caused defendant to lose crops worth some $10,000; and that it had been compelled to pay the sum of $644.50 in satisfaction of a judgment obtained by a lienholder against it. Under its counterclaim defendant prayed judgment for the sum of $14,644.54.

The plaintiff did not reply to any of the allegations of the answer regarding engineer's certificate of completion or failure to furnish vouchers, but denied the failure to perform in the time limit, or to finish the canal to the point required, or to build it according to the plans and specifications. He further alleged that, if the work was stopped it was because defendant had informed plaintiff's workmen that it would not pay any more money on account of the construction, and that, if they did any more work, they did so at their own risk; the effect being to make it impossible for plaintiff to construct the canal any farther. We think this sufficiently recites the pleadings upon which the case was tried.

The defendant has stated in its brief some thirty-one assignments of error, and has attempted to group these, as required by our rules, under propositions of law. We find it, however, somewhat difficult to determine from the grouping exactly what legal propositions defendant thinks are involved in the appeal, and shall therefore consider the case as best we may on the whole record.

The first issue is whether or not the work, which it is admitted was actually done, was performed under one written contract or under two contracts, one of which was written and the other of which was oral. The written contract admittedly executed by the parties is to the effect that plaintiff should construct certain drainage canals, "as shown by plans . . . as specifically described in the specifications and plans hereinafter referred to." It was further agreed therein that "the work hereby contracted for should be performed in accordance with the true intent and meaning of the plans and specifications therefor which are hereby referred to and made a part of this contract." It was to be paid for at the rate of 10 1/2 cents per cubic yard on monthly estimates of defendant's engineer, 50 per cent. immediately on such estimates and the balance after the work was completed and accepted by the engineer. The contractor was to furnish vouchers showing that all materials, labor and equipment had been paid for at the time each estimate was made, or the company would be entitled to withhold payment thereof, and the final payment was to be made when the engineer of defendant certified in writing that the work was finished according to the terms of the contract. Finally it was provided that, if the contractor failed or refused to continue the prosecution of the work diligently, the defendant had the right to take over and complete it and pay therefor from the 50 per cent. of the monthly estimate retained as provided by the contract.

There can be no doubt that any work done under the terms of the written contract had to be approved by the engineer on estimates made by him, and that no portion of the payments needed to be made until it appeared that there were, to the date of the estimate, no lienable claims for labor or material outstanding, and that the final payment should not be made until the engineer certified that the work was completed in accordance with the terms of the contract. Provisions of this nature are common in construction contracts and are held to be valid and binding ( Guarantee Title & Trust Co. v. Willis, 38 Ariz. 33, 297 P. 445; Elliott v. Missouri etc. R. Co., (C. C. A.) 74 F. 707; Hathaway v. Stone, 215 Mass. 212, 102 N.E. 461; Williams v. Mount Hood R. Co., 57 Or. 251, 110 P. 490, 111 P. 17, Ann. Cas. 1913a 177), unless it appears that the engineer has acted arbitrarily and capriciously or unreasonably ( Guarantee Title & Trust Co. v. Willis, supra; Ripley v. United States, 223 U.S. 695, 750, 32 S.Ct. 352, 56 L.Ed. 614; American-Hawaiian Engineering Co. v. Butler, 165 Cal. 497, 133 P. 280, Ann. Cas. 1916C 44; Hebert v. Dewey, 191 Mass. 403, 77 N.E. 822; Piper v. Murray, 43 Mont. 230, 115 P. 669), or that the parties have waived such provisions ( Blethen v. Blake, 44 Cal. 117; Lavanway v. Cannon, 37 Wash. 593, 79 P. 1117; Ryan v. Curlew etc. Co., 36 Utah 382, 104 P. 218). *tThe contract itself does not specifically state of just what the work should consists, but identifies it by reference to the plans and specifications. The specifications do not describe the work, except by reference to the plans as follows: "The plans consist of profiles marked Gillespie Drainage Canal and Arlington Drainage Canal, with typical cross sections of the same." The only plans which we find in the exhibits appearing in the abstract of record, or referred to therein, are one blue-print marked "Gillespie Drainage Canal, typical cross section," and two drawings which are on their faces apparently the profiles of some kind of a canal. These last-mentioned drawings, however, do not have on them any of the identifying marks referred to in the written contract or the specifications, and it is impossible to determine to what canal they refer, except by extrinsic evidence. We therefore are of the opinion that, as a matter of law by its terms the written contract consisted only of the work shown in the blueprint which is marked and identified according to the specifications. This blue-print shows that the canal in question began at what is indicated thereon as Station 215 plus and terminated at Station 386 plus. There is nothing anywhere in either the contract, the specifications, or the only properly identified plan and profile appearing in the record to indicate, without the aid of parol evidence, that the written contract covered more than the work between Stations 215 plus and 386 plus, as shown on the plan and profile referred to. There is a serious question as to whether parol evidence of any nature would be admissible to vary the terms of the written contract, which is unambiguous on its face, but, even assuming that such evidence would be admissible, the record shows a conflict therein, plaintiff testifying to one state of facts and defendant's witnesses to another. Under these circumstances, the verdict of a jury is final upon that point. We therefore hold that the work to be done under the written contract terminated at the said Station 386 plus.

The work done under this contract is that upon which plaintiff's first cause of action is based. Let us then consider whether there is any error in the record so far as the judgment on this particular cause of action is considered. It is urged by defe...