Hayden v. City of Astoria

• Citation: 145 P. 1072,74 Or. 525
• Parties: HAYDEN ET AL. v. CITY OF ASTORIA.
• Decision Date: 02 February 1915
• Court: Supreme Court of Oregon

145 P. 1072

74 Or. 525

HAYDEN ET AL. v. CITY OF ASTORIA.

Supreme Court of Oregon

February 2, 1915

Department 2.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by Wilbur Hayden, Hoyt Hayden, T. B. Bidwell, and J. F Meager, partners as Bidwell-Hayden & Co., against the City of Astoria, a municipal corporation. From a judgment dismissing the action, plaintiffs appeal. Reversed and remanded, with directions.

This is an appeal by the plaintiffs from an order of the circuit court striking their complaint from the record and dismissing the action. On August 22, 1911, a contract was entered into between Bidwell-Hayden & Co. and the city of Astoria, Or whereby the plaintiffs agreed to construct a storage reservoir dam, and clear a reservoir site on Bear creek by October 1, 1912, in accordance with the specifications attached and plans explanatory thereof which had been made or might thereafter be made from time to time by the engineer and according to the written and verbal directions of the engineer in charge of the work as the same progressed. The contract was upon the unit basis: For clearing 25 acres for reservoir site, $10,000; 1,900 cubic yards earth excavation at 50 cents, $950; 550 cubic yards rock excavation at $2 $1,100; 6,600 cubic yards concrete, furnishing and placing at $8.88, $58,608; and sluice gates, specials, pipes, steps, handrails, etc., for the total sum of $64,889.90.

The plaintiffs set out at great length in their complaint that the construction of the dam and work, with the exception of clearing the reservoir site, was so changed that the original contract was modified and abandoned, and bring action for the reasonable value of the construction of the dam, etc. They aver that the plans purported to show the character of the dam to be constructed; that defendant required them to proceed with the exploration of the ground in a slow and costly manner in order that it might determine the nature of the ground and where a suitable foundation might be found, refusing to give the plaintiffs plans, directions, or information as to the extent of the excavation required, thus forcing them to obtain the same and determine the nature and quality of the ground at their own expense, causing delay and expense, and preventing the doing of the work on time or in the manner set forth in the original contract; that 4,325 cubic yards of rock were removed from the excavation instead of 550; that the excavation for the dam was thereby increased about 155 per cent.; that the defendant changed the type of the dam and the contemplated location; that during the placing of the concrete the engineers arbitrarily changed the proportions of cement, sand, and stone used in making the concrete so as to require a more costly mixture than specified; that the specifications called for 6,600 yards of concrete, whereas the amount was finally placed at 8,703; that the concrete cost $15 per yard, instead of $8.88, making a total of $130,575, whereas under the contract it would have cost about $77,000; that, owing to the work having to be done in the winter season, there were washouts and slides which retarded the operation, causing heavy expense. It was further contended that the original plan furnished by the defendant shows one cut-off wall four feet wide and four feet deep, filled with concrete, running parallel to the storage dam and serving as a part of the foundation for the same; that this was excavated according to the original plans and the advice of the engineer; that after a wait of several days during the month of August, and after consulting with another engineer, those in charge changed the plans of the cut-off wall by requiring it to be made four feet wide and ten feet deep, and added two additional cut-off walls parallel to the dam, each being four feet wide and ten feet deep, neither of which was shown on the original plans; that this increased the work of excavating for and concreting the cut-off walls approximately 500 per cent. over the amount indicated in the original specifications, which added greatly to the cost, hindered and interfered with the works of plaintiffs, prevented them from completing the work in the time specified, and made it necessary to do a part thereof in the winter season. Various other changes and additions were made, of which the above are samples.

According to the plaintiffs' complaint, the dam was completed June 22, 1913. All the work was done by that date and thereafter accepted by the defendant municipality, and was a first-class job. The plaintiffs assert that the changes and the departures from the original plans and specifications, the incompetency of the engineers, and the delays which added to the expense of the work, together with all the other matters herein contained, constituted a material modification, departure, and abandonment of the original contract; that the prices mentioned therein cannot be traced to or applied to the work, labor, and materials furnished, except that set forth for clearing the reservoir site, which is admitted as proper compensation for that part of the work; that all other work, labor, and services rendered and materials furnished on the dam and excavation, the placing of the concrete, etc., are of the reasonable value of $143,105.58, of which $82,473.11 has been paid, leaving a balance due for this part of the work of $60,632.47, which with the sum of $1,034, balance for clearing reservoir site, makes the total sum due $61,666.47.

The defendant's counsel served notice upon the plaintiffs demanding an itemized statement of the account sued upon, and in compliance therewith the plaintiffs filed an itemized statement of the cost of the work set forth in the complaint "Showing Expenditures, Building Dam." Counsel for defendant then filed a motion to make the complaint more definite and certain, of the following purport:

"That the plaintiffs be required to make the allegations set forth in paragraph 13 of said complaint more definite and certain in the following particulars, namely: That plaintiffs be required to set forth in said complaint the actual number of days and hours, in other words, the actual time, in which plaintiffs were delayed in their work therein described, because of the fact as therein alleged that Lars Bergsvik came upon said work therein described only about once a week; * * * that said plaintiffs be required to set forth and allege the actual amount of damages that the plaintiffs claim they sustained by reason of the alleged differences of opinion between Bergsvik and Forsythe (the engineers)."

In about 20 specific paragraphs the plaintiffs were required to set forth specifically the amount of damages they claimed they suffered by reason of the matters alleged in the several paragraphs of the complaint. Pursuant to the order of the court, the plaintiffs filed an amended complaint, in which th...