Haugen v. Raupach
| Decision Date | 31 August 1953 |
| Docket Number | No. 32387,32387 |
| Citation | 260 P.2d 340,43 Wn.2d 147 |
| Court | Washington Supreme Court |
| Parties | HAUGEN et al. v. RAUPACH et al. |
Thos. A. E. Lally and Dressel & Lehan, Spokane, for appellants.
Henessey & Curran, Spokane, for respondent Tenhonen.
Wilmot W. Garvin, Spokane, for respondent Haugen.
This action was brought by respondents to recover a judgment against appellants for a balance claimed to be owing on a building construction contract and to foreclose a contractor's lien. A subcontractor intervened in the action seeking judgment against respondents and appellants and the foreclosure of a lien filed by him. Appellants answered the amended complaint by denials and a cross-complaint alleging non-compliance with the contract in seventy-three different particulars for which they claimed damages. The answer to the complaint in intervention denied many of its allegations and pleaded as affirmative defenses a noncompliance with the contract in thirteen different particulars and the execution by intervener of a release of his lien rights.
At the close of respondents' and intervener's cases appellants moved for a dismissal of both actions. The basis for the motion directed to the case of respondents was that the amended complaint failed to state a cause of action in that it did not allege that they had secured the certificate of completion of the contract from the architect as provided therein or facts constituting an excuse for a failure to do so; also that no proof had been submitted by appellants that they had requested such a certificate and the request had been refused. Appellants relied upon the release of lien rights by the intervener to support their motion to dismiss his action.
The court denied the motions to dismiss. Appellants elected to stand on the record and submitted no evidence in support of their affirmative defenses and counterclaim. The court made findings of fact and conclusions of law. Judgment for the amounts found owing to respondents and intervener, respectively, was entered and the liens were ordered to be foreclosed.
The assignments of error directed to certain findings of fact and rulings of the court present two questions--(1) whether the court properly decided that respondents were not required to obtain a certificate of completion from the architect because of the acts and conduct of appellants and their agent, and (2) whether the court was justified in holding that the release of lien executed by the intervener was invalid for want of consideration.
The amended complaint, which had a copy of the contract attached and made a part thereof, did not allege either that respondents obtained a certificate of completion from the architect or any facts from which it would follow their failure to do so was excused. The amended complaint was vulnerable to a general demurrer. Lindblom v. Mayar, 81 Wash. 350, 142 P. 695. No attack was made on the amended complaint by a demurrer. Appellants were content to withhold objection to the complaint until respondents rested their case. The court met the situation by applying the often-repeated rules that on a motion for a nonsuit the complaint would be treated as amended to conform to the proof; that the evidence submitted by the plaintiff would be viewed in a light most favorable to him and would be aided by all reasonable inferences properly to be drawn from such evidence. The court considered the amended complaint as further amended by the proof to allege facts constituting an excuse for not obtaining the certificate of completion and denied the motion. The court concluded there was evidence in the record establishing that no consideration moved from appellants to intervener to support the release of the lien on their property.
When expressing his views on the motions to dismiss, the trial judge indicated they might be changed by evidence to be submitted by appellants with reference to either or both questions raised. He stated that he must decide the questions raised on the record as it then stood. The trial judge very plainly invited appellants to submit any controverting evidence they possessed, but after an overnight recess of the court appellants elected to stand on the record as made by respondents' case. The court then considered and wright the evidence and found and concluded that appellants and their agent made it impossible for respondents to secure a certificate of completion of the contract and that it would have been a futile act to have demanded such a certificate from the architect. The court was inclined to the view that the release of intervener's lien was supported by a consideration, but concluded otherwise when making and entering findings and fact and judgment.
The evidence upon which the court decided that respondents were entitled to recover the balance owing to them by appellants without having obtained a completion certificate was to the effect that there had been a substantial compliance with the contract by respondents, with the exception of certain items for which appellants could be compensated by way of offset; that almost from the inception...
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