Hoskins v. Powder Land & Irrigation Co.

• Citation: 176 P. 124,90 Or. 217
• Parties: HOSKINS v. POWDER LAND & IRRIGATION CO. ET AL.
• Decision Date: 26 November 1918
• Court: Supreme Court of Oregon

176 P. 124

90 Or. 217

HOSKINS v. POWDER LAND & IRRIGATION CO. ET AL.

Supreme Court of Oregon

November 26, 1918

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Action by J. A. Hoskins against the Powder Land & Irrigation Company, a corporation, and J. A. Almirall, trustee. Decree for plaintiff, and defendants appeal. Reversed and dismissed.

By his second amended complaint the plaintiff seeks to foreclose a lien for labor, services, and materials furnished for and used in the construction, alteration, and repair of a dam and reservoir for the defendants. It is said that by the original contract the work was to be completed on or before November 1, 1916. The agreement was made in the name of W. A. Steward but the complaint avers that it was so made for the benefit of the defendant company and its trustee, J. A. Almirall. After the general averment concerning the execution of the instrument as before indicated, the complaint under consideration contains this allegation:

"That on or about the 5th day of September, 1916, the plaintiff and said W. A. Steward, as agent for the defendant Powder Land & Irrigation Company and J. A. Almirall, trustee entered into an oral agreement modifying said written agreement, in this: The said Steward as such agent agreed to and with the plaintiff to waive the time limit fixed in said written contract providing for the completion of said contract on or before the 1st day of November, 1916, as might be necessary for the completion of said dam and reservoir, provided that the plaintiff would complete and finish said dam and reservoir as soon as possible, and without unnecessary delay, and that said W. A. Steward as such agent further agreed to and with plaintiff on or about the 5th day of September, 1916, that after said date he would furnish at his own expense all powder, caps, and fuse and pay for all labor, from and after said last-named date necessary for clearing and grubbing of the borrow pits until said reservoir and dam was fully finished and completed, plus ten per cent. for all such labor; and the plaintiff thereupon agreed to and with said Steward, agent for defendant Powder Land & Irrigation Company, and J. A Almirall, trustee, to proceed with the construction of said reservoir and dam, and to finish and complete the same as soon as possible, and without unnecessary delay.

"That said written contract aforesaid was further modified in this: That from time to time during the progress of work and construction on said reservoir and dam, between the 1st day of July, 1916, and the 9th day of November, 1916, the plaintiff, at the special instance and request of the said W. A. Steward, agent as aforesaid, performed extra work and furnished extra material in the construction, alteration and repair of said dam and reservoir not contemplated by or included within the terms and conditions of said written contract, and that the defendants undertook, promised, and agreed to pay the plaintiff therefor."

The plaintiff avers as a conclusion that the lump sum of $15,493.01 was the contract and reasonable price for the work performed and the material furnished under the written stipulation and the alleged modifications thereof, and that no part thereof has been paid to the plaintiff except $12,300.35, leaving a balance of $3,192.66, for which, with $500 as attorney's fees, $5 for preparing the lien, and the further sum of $2 for recording the same, the plaintiff prays decree and foreclosure of the lien.

A general demurrer to the complaint under consideration was overruled by the court, whereupon the defendants answered, denying the whole complaint, except the corporate existence of the company and except as stated in the new matter of the answer.

In substance, the first affirmative defense is that the contract was made between the plaintiff and W. A. Steward personally and not as the agent of the defendant company or any one; that the agreement was that the work should be completed on or before November 1, 1916, time being made the essence of the contract; and that about October 9th of that year the plaintiff abandoned the work, notifying Steward in writing to that effect, whereupon the latter called in the surety of the plaintiff, which took up the work and completed it on October 31, 1916, while the notice of lien was not recorded until more than 60 days thereafter, viz. January 8, 1917.

The second defense is, in substance, a rehearsal of the terms of the contract, hereinafter more fully noticed, which the defendants claim estop the plaintiff from alleging the matter already quoted from the amended complaint. For a third ground of opposition to the complaint the defendants plead that the plaintiff is estopped from enforcing a lien, because he abandoned the contract, by reason of which he should not be permitted to maintain any action or suit thereon. Lastly, the defendants plead that on December 9, 1916, the plaintiff agreed with Steward, in whose name the contract was made, that if the latter would pay a debt owing by the plaintiff to the Basche-Sage Hardware Company, amounting to $1,196.16, the plaintiff would accept the same as full and final settlement of all sums and accounts due him for labor performed and material furnished upon the dam in question, either by the terms of the written contract or otherwise; which offer was accepted by Steward, who paid to the hardware company the amount mentioned, as a full settlement and satisfaction of the plaintiff's demand on account of the transaction about the dam.

The new matter in the answer was denied by the reply. The trial before the circuit court resulted in a decree for the plaintiff, from which the defendants appeal.

Morton D. Clifford, of Baker (Clifford & Correll, of Baker, on the brief), for appellants.

John L. Rand and William H. Packwood, Jr., both of Baker, for respondent.

BURNETT, J. (after stating the facts as above).

At the hearing before the circuit court it was agreed that the following items of the plaintiff's claim were the only ones disputed:

Concrete piers, 4.86 cubic yards, at $15.60 per yard .............. $ 75 25

Excavation and placing earth in the embankment for reservoir dam,

32,669 cubic yards, at 35 cents per yard ........................... 11,- 85

4-

41

Work and labor for August, 1916, in addition to above ................. 123 44

The defendants admit $121.95 of this last item, challenging thereof only $1.49, but dispute the following:

For work, labor, and material furnished for September, 1916, in

addition to the above .............................................. $899 81

Work and labor for October, 1916, in addition to the above ............ 460 32

Work and labor and material furnished for November, 1916, in addition

to the above ........................................................ 416 75

We note that the complaint attempts to plead modification of the contract in three respects: (1) The waiver of the time in which the work should be completed. (2) That on or about September 5, 1916, the agent of the defendants in whose name the contract was made was to furnish powder, caps, and fuse, and pay for clearing and grubbing the borrow pits, plus 10 per cent. of the cost. (3) That during the progress of the undertaking, at the special instance and request of W. A. Steward, the agent of the defendants, the plaintiff performed extra work and furnished extra material in the construction of the dam and reservoir not included in the terms of the written contract, for which the defendants agreed to pay the plaintiff.

Taking these in inverse order, we discern from the contract, which was admitted in evidence without objection, that--

"No extra work shall be done without written orders from W. A. Steward or his engineer. Extra work or material of a character not provided for in the specifications, if ordered in writing by the engineer, will be paid for at actual necessary cost, as determined by the engineer, plus 10 per cent. for profit, superintendence, and general expenses. The cost of extra work shall include all materials, labor, and fuel furnished by the contractor, but shall not include use of tools or machinery, office expenses, general superintendence, or other general expenses. Demand for payment must be made in writing by the contractor promptly upon the completion of the extra work or furnishing of the extra material. The account including the same must be accompanied by the certificate of the engineer stating that such work has been satisfactorily performed or such material furnished, and stating the amount to be allowed therefor. The contractor shall, when requested by the engineer, furnish itemized statements of the cost of the work ordered, and give the engineer access to accounts, bills, and vouchers relating thereto."

If the work mentioned in the third modification, as pleaded, related to the erection of the dam in any way, it was already provided for in the excerpt just quoted from the written contract, so that the allegation does not amount to a modification. As to the expense for powder, caps and the clearing and grubbing of the borrow pits, the consideration for the alleged agreement of Steward to pay for the same, as averred in the complaint, is that--

"The plaintiff thereupon agreed to and with said

Steward, agent for defendant, * * * to proceed with the construction of the said reservoir and dam, and to finish and complete the same as soon as possible and without unnecessary delay."

Recalling that at that very time the plaintiff was under contract to finish the identical dam, we read from 13 C.J. 351:

"A promise to do what the promisor is already bound to do cannot be a consideration, for, if a person gets nothing in return for

...