Haley v. Brady

• Citation: 17 Wn.2d 775,137 P.2d 505
• Decision Date: 08 May 1943
• Docket Number: 28919.
• Parties: HALEY et al. v. BRADY et al.
• Court: United States State Supreme Court of Washington

137 P.2d 505

17 Wn.2d 775

HALEY et al. v. BRADY et al.

No. 28919.

Supreme Court of Washington

May 8, 1943

Department 1.

Action by George L. Haley and another, copartners, doing business as Haley & Smyth, against C. D. Brady and another, copartners doing business as Brady Construction Company, and another, to recover compensation for plaintiffs' services in lathing and plastering buildings constructed by defendant partners as principal contractors. Judgment for plaintiffs, and defendant appeal.

Affirmed.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

Catlett, Hartman, Jarvis & Williams, of Seattle for appellants.

Wright and Wright, of Seattle (A. J. Laughon, of Seattle, of counsel), for respondents.

MALLERY Justice.

This action was brought by plaintiffs, as subcontractors, to recover compensation for their services in doing all the lathing and plastering on two ward buildings of the Western State Custodial School at Buckley. Defendants are the principal contractors and their surety. The bonds were furnished in accordance with Rem.Rev.Stat. Secs. 1159-1161 inc. The jury's verdict was for plaintiffs in the amount of $4366.22. There was a second cause of action upon which the verdict was for the defendants. This appeal by the defendants deals only with the first cause of action, upon a short written contract and five oral contracts for additional work. The reasonable value of the additional work as itemized in the complaint was as follows:

"(1) Suspended ceilings, material
and labor	$ 190.00
"(2) Lathers' time preparing
ground-work ..................	95.06
"(3) Padding out and building
up crooked walls, etc.
(material) ...................	351.50
"(4) Labor on last item .............	439.30
"(5) Extra labor cost in preparing
ground work for plaster,
and stand-by time ............	2,234.78
"(6) Increased cost because of
change in plant location .....	992.00
"(7) Labor cost, cleaning up ........	100.00
----------
"Total ......................	$4,402.64"

These items were not numbered in the complaint but have been given the numbers (1) to (7) as above for the purposes of this opinion.

The evidence was conflicting with regard to the alleged oral contracts and the conditions surrounding the work performed by respondents. The facts which the jury was entitled to find were as follows:

The respondents, who composed the partnership of Haley & Smyth, were asked by the appellants in October, 1939, to submit a bid for the lathing and plastering, according to plans and specifications, of the two buildings. The plans furnished them called for a simple plastering and lathing operation. They first submitted a bid of fourteen thousand dollars. Later on, upon the assurance that they were to have a certain fixed and definite place to set up their equipment from which they could carry on their operations, they were asked by the appellants to refigure the bid. They reduced the bid by nine hundred dollars and signed the agreements as follows:

'Brady Construction Company

'General Contractors

'1166 Mercer Street

'Seattle, Washington

'Oct. 23, 1939

'Haley & Smith

'304 Bell St.,

'Seattle, Washington

'Re: Ward Building

'Western State Custodial School

'Buckley, Washington

'Gentlemen:

'This is your order to proceed with the furnishing of all labor and material to do plastering complete on Two Ward Buildings, Western State Custodial School, Buckley, Washington, Graham & Painter, Architects, all according to Plans and Specifications, including Stools, Metal Screeds and grounds and Cement Base. Also includes screeds for stairs if required, but does not include stair base or treads for the sum of----

'Thirteen Thousand One Hundred and No/100 Dollars ($13,100.00).

'The State Sales Tax and all other State and Federal Taxes are to be paid by the Subcontractor

'Yours truly,

'Brady Construction Co.

'By C. D. Brady

'Accepted:

'Haley & Smith

'By R. C. Smyth'

Upon reporting for work, respondents discovered that the promised place for their plant location was otherwise occupied by tile setters and brick masons, whose operations had to precede those of respondents. Respondents refused to proceed until the place for their plant location was rendered available, or they were compensated for their increased costs that would be occasioned from operating from some other location.

This was the situation on May 6th, 1940, when a definite oral agreement was made and entered into by R. C. Smyth, of the respondents, and C. T. Brady of the appellants, in reference to the payment of their increased costs occasioned because of the change in the plant location (Item no. 6 above). The exact amount which respondents were to receive was not stated in so many words, but how it could be arrived at was a matter of fairly simple mathematical computation.

When respondents started their actual lathing operations in the basement portion of the Boys Ward Building, it was discovered by them that in that particular area, at least (that being the only section in either building that was then ready for lathing and plastering operations), they were being asked to carry on an operation that was not in accordance with the plans and specifications. Accordingly on that date, May 13th, Mr. Smyth of respondents entered into an oral agreement with C. T. Brady of the contractors, in reference to their reimbursement for their increased costs upon that particular section of the work and for the remedy of certain defects that would have to be corrected in the window stools in and about the building. This was item 2 as set forth above.

Two days later, on May 15, 1940, an oral agreement was entered into between these same individuals, with reference to general cleaning up, which respondents were to do, on the two buildings upon the completion of their operation. The amount agreed upon was $100 (Item 7 above).

From May 6th, 1940, until and including May 22, 1940, R. C. Smyth repeatedly told C. T. Brady that the contractors' operations were not then at such an advanced stage that the lathing and plastering operation could be carried on in an orderly and economical manner. He urged that the lathing and plastering operation be deferred until the contractors' other operations had gotten out of the way. He was assured, however, that the contractors were putting on a larger crew of men and that their operations would, within a few days, be entirely out of respondent's way. Accordingly, respondents brought their plastering crew to the job on Monday, May 20, 1940. In two days time, all of the plastering had been done by the crew in the area then available in the basement. By that time it became apparent to Mr. Smyth that respondent's lathing and plastering operations could not proceed under the conditions existing, except at a prohibitive cost to them, and that respondents were then being called upon to do a lathing and plastering job not 'all according to plan and specifications' because of the poor, faulty or incomplete work of the appellants. On May 22, Mr. Smyth made a rather extensive examination in and about the Boys Ward Building. He immediately sought out C. T. Brady and insisted that he go through the building with him. He told him that respondents would not proceed any further under the conditions existing because of the prohibitive increased costs, that respondents were withdrawing their entire crew from the operations that night, and would remain away from the work until the contractors had the work in a reasonable condition so that respondents could proceed without interruption. Mr. Brady and Mr. Smyth finally arrived at an agreement pertaining to the matter of additional compensation to be paid respondents for their operation under the conditions and for overcoming and correcting the defects in the contractors' work that had preceded them, and the manner in which the amount of respondents' additional compensation would be computed. This oral agreement had to do with items 3, 4 and 5 above.

The situation and the working conditions are testified to by at least two other witnesses, but the evidence of this oral contract which related to nearly 3/4th of the additional items in controversy, was testified to only by Mr. Smyth, himself, as follows:

'I looked at the building * * * I saw the west wall--the inside of the outer west wall was in a very, very crooked condition * * * I thought if this is the improvement I had better look around the building, and I did, and if anything it was worse on the first floor, the condition of the walls was worse than in the basement, and I went through other rooms and found the condition of the ceilings with portions of some of the lumber in the corners and large chunks of concrete were hanging down in some places, and reinforcing iron about 5/8th thick sticking down two or three inches that would have to be sawed off with a hack saw or burned off, and nails and heavy fins of concrete sticking down in the ceiling and they would have to be taken off, * * * I went down to Ted's office, and he said, 'What is the matter?' and I said, 'I want you to come through the building,' and he said, 'I thought everything was settled; what is the matter?' and I said, 'Everything is not settled quite, and I want you to come in this room here and look at it.' And this is the dining room, on this wall here, I said, 'Look at the shape of that,' and he said, 'Smyth, that does look pretty bad,' and I said, 'How does that happen, Ted?' and he said, 'I can show you where the line is, and I gave it to the bricklayers, but they evidently didn't follow it, it is...