Halvorson v. Blue Mountain Prune Growers Co-op.
| Citation | 214 P.2d 986,188 Or. 661 |
| Parties | HALVORSON et al. v. BLUE MOUNTAIN PRUNE GROWERS CO-OP. |
| Decision Date | 15 February 1950 |
| Court | Supreme Court of Oregon |
Argued Nov. 1, 1949.
Rehearing Denied April 25, 1950.
John F. Kilkenny, of Pendleton, argued the cause for appellant. On the brief were Raley, Kilkenny & Raley, of Pendleton.
W. C. Winslow, of Salem, argued the cause for respondents. With him on the brief was George H. Corey, of Pendleton.
Before LUSK, C. J and BRAND, BAILEY, HAY and PAGE, JJ.
The plaintiffs are building contractors. On April 2, 1945, they entered into a contract in writing with defendant to construct an addition to defendant's fruit-packing and storage plant at Milton-Freewater, Oregon. We shall refer to plaintiffs as 'the contractors' and to defendant as 'the owner'.
The contract provided that the contractors should furnish all materials for the construction of the building, and perform all the work of construction, in accordance with certain drawings specifications, and documents prepared by the architect. The work was to be completed on or before June 1 1945, under penalty of $100 as liquidated damages for each calendar day's delay in completion beyond that date.
The contract price was $47,403, payable by monthly installments on about the 10th day of each month, each such installment to cover 85% of the work completed during the previous month. The amount of each payment was to be determined by the architect, and payment thereof authorized by his certificate.
The work was not finished within the time limited by the contract, but the contractors claim that it was completed on or before July 12, 1945. On that date, they submitted to the architect a 'final estimate', whereby, having, as they said, completed the building, they claimed to be entitled to receive a balance of $33,934.02, computed as follows:
'Contract for construction of addition to warehouse 47,403.00
Plus additional work 1,531.02
-----------
48,934.02
Less previous payment 15,000.00
-----------
Balance due $33,934.02'
A statement of the details of the claimed additional work was appended.
On July 18, 1945, the architect certified to the owner that a payment of
$25,292.55 was due the contractors 'under terms of the contract', as follows:
"85% of Contract ($47,403.00) $40,292.55
Less payment of $15,000.00
5/18/45 15,000.00
----------
Due $25,292.55 "
The amount of the above-mentioned certificate was paid by the owner to the contractors, $20,000 on July 19, 1945, and $5,292.55 on August 14, 1945. This left, according to the contractors' figures, an unpaid balance of $8,641.47 upon the contract price and amount claimed for additional work.
On August 10, 1945, the contractors wrote the architect stating that they would appreciate his 'issuing the final voucher for the job at Milton', so that they might obtain final payment without further delay. On October 30, 1945, he contractors sent the owner a letter as follows:
On November 16, 1945, the contractors wrote the architect as follows: 'Please advise us when we will receive our final payment from the Blue Mountain Prune Growers Cooperation as you have promised us several times that you would make up our final certificates.'
The evidence shows that Mr. E. Halvorson, one of the plaintiffs, in the intervals between correspondence, talked by telephone with Mr. Morgan, the architect, two or three times, and with Mr. C. C. Yates, manager for the owner, several times. His talks with Mr. Morgan were for the purpose of urging him to issue the final certificate. Mr. Halvorson testified, in part: 'When I called Mr. Yates, he told me he was waiting for Mr. Morgan to give him the certificate.' Mr. Yates testified, in part:
On November 24, 1945, the contractors wrote the owner as follows:
'We trust we will receive our check without any further delay.'
Under date of November 30, 1945, the architect issued to the owner his final certificate. The certificate is based upon the contract price plus the amount claimed by the contractors for additional labor and materials, but against this the architect made certain surcharges, leaving a net balance of $4,873.79 owing to the contractors by the owner. The principal item so surcharged was a $3,000 penalty, 'per contract', for thirty days' delay in completion of the building. Other items were: For omitting 'sacking', $500; for 'tack nailing' certain floors, instead of nailing tight, $140; for tools belonging to owner and taken away by contractors, $95; for work performed after contractors left the job, $132.79.
On November 30, 1945, the owner mailed to the contractors its check in the sum of $4,873.79, as and for payment of the balance due under the architect's final certificate, which check the contractors refused to accept.
Thereafter, the contractors instituted this action. The cause of action, as set forth in the amended complaint, is account stated in the sum of $8,641.47. It is based upon the contractors' 'final estimate' of July 12, 1945, as an account rendered, which is alleged to have become an account stated by having been held by the owner without objection until December 6, 1945. The owner answered the amended complaint by general denial. For affirmative defense, it pleaded the contract between the parties, and particularly that part thereof which provided that payments were to be made to the contractors in amounts as determined by the architect and authorized by certificate from him. It recited the issuance of the architect's final certificate, the tender to the contractors of the amount thereof, and their refusal of such tender. It alleged that the architect did not, at any time between July 12, 1945, and November 30, 1945, certify any payment to be made by the owner to the contractors. The reply to the affirmative defense was a general denial, coupled with affirmative allegations to the effect that the only dispute between the parties is with regard to the 'charges or credits claimed by' the owner. Specifically, it was alleged that the item of $500 for omitting sacking was excessive and arbitrary; that the item of $3,000 for delay in completing the building was arbitrary, fraudulent, and unfounded; that the other items of charge were unfounded; and that all of the items of charge were made without consultation with the contractors or affording them a hearing. Replying further, the contractors alleged that, during the course of the performance of the contract, it was agreed between the owner and the contractors that, if the latter completed the first floor of the building by June 1st, no penalty would be exacted by the owner on account of any delay in the performance of the contract; and that the contractors did complete said first floor by June 1st.
The cause was tried by the court and a jury. The defendant owner, at the appropriate times, moved respectively for judgment of involuntary nonsuit against plaintiffs, and for a directed verdict in defendant's favor. Each motion was denied. The jury returned a verdict in favor of the contractors in the sum of $8,641.47, and judgment was entered accordingly. The defendant owner appeals, assigning as error the trial court's refusal to allow its motions for involuntary nonsuit and for directed verdict.
'An account stated is an agreement between persons who have had previous transactions of a monetary character fixing the amount due in respect to such transactions and promising payment.' Steinmetz v. Grennon, 106 Or. 625, 634, 212 P. 532, 535.
The contractors' 'final estimate', although in form a statement of account against the owner, was submitted to the architect for the purpose of having him examine it and issue his certificate for payment.
The assent of a debtor to an account stated may be implied from his retention of the account, without objection for more than a reasonable time. Williston, Contracts, Rev.Ed., section 1863; Restatement, Contracts, section 422(2). What is a reasonable time depends upon the circumstances of the case, including the...
To continue reading
Request your trial
-
Portfolio Recovery Assocs., LLC v. Sanders
...agreement may affect whether the March 2010 balance can be the basis for an account-stated claim. See Halvorson v. Blue Mt. Prune Growers Co-op. , 188 Or. 661, 670, 214 P.2d 986 (1950) (explaining that, if the relationship of the parties is governed by the terms of an express contract, then......
-
Whittington v. Dragon Group, LLC
...where "the common-law sanctity of specialty contracts, or those under seal, was abolished"); see also Halvorson v. Blue Mountain Prune Growers Co-op., 188 Or. 661, 214 P.2d 986, 990 (1950) ("The fact is, however, that the unsealed contract herein was in no sense a specialty. It was, rather,......
-
Shepard & Morse Lumber Co. v. Collins
...and appraisal had previously received the sanction of this court, and they were more recently applied in Halvorson v. Blue Mt. Prune Growers Co-op., 188 Or. 661, 673, 674, 214 P.2d 986, 217 P.2d In J. R. Meyers & Co. v. Pacific Construction Co., 20 Or. 603, 27 P. 584, a provision in a const......
-
State v. Jackson
...is such length of time as may reasonably be allowed or required having regard to attending circumstances. Halvorson v. Blue Mt. Prune Growers Co-op., 188 Or. 661, 670, 214 P.2d 986, 217 P.2d 254; Vance v. Mutual Gold Corp., 6 Wash.2d 466, 108 P.2d 799; Colfax County v. Butler County, 83 Neb......