Jackson v. City of Walla Walla

• Decision Date: 03 June 1924
• Docket Number: 18330.
• Citation: 130 Wash. 96,226 P. 487
• Court: Washington Supreme Court
• Parties: JACKSON v. CITY OF WALLA WALLA.

226 P. 487

130 Wash. 96

JACKSON v. CITY OF WALLA WALLA.

No. 18330.

Supreme Court of Washington

June 3, 1924

Department 2.

Appeal from Superior Court, Walla Walla County; Miller, Judge.

Action by L. W. Jackson against the City of Walla Walla. Judgment for defendant, and plaintiff appeals. Affirmed.

Pemberton J., dissenting.

W. B Mitchell, of Spokane, John C. Hurspool, of Walla Walla, and E. B. Quackenbush, of Spokane, for appellant.

James P. Neal and John L. Sharpstein, both of Walla Walla, for respondent.

MITCHELL J.

On February 24, 1922, L. W. Jackson entered into a written contract with the city of Walla Walla to construct and install additions and betterments to and extensions of the water system owned and operated by the city. He commenced work on March 13, and on April 1 the engineer in charge for the city, acting under the terms of the contract, rendered to the contractor a written certificate and estimate of work done during March upon which the city should make payment according to the plan provided in the contract of monthly written estimates in order to enable the contractor to prosecute the work advantageously. On May 1 the engineer rendered a written certificate and estimate of the work done in April. The contractor collected from the city 85 per cent. of those amounts, as the contract provided for. Thereafter the contractor, not being satisfied with those estimates, had a controversy with the city over them which resulted in his giving the city written notice on May 11 of his treating the contract as terminated and his abandonment of all work thereunder. Thereupon, claiming that the city was at fault and had breached the contract, he brought this action in September, 1922, to recover a balance alleged to be due for work already performed and to recover a further sum of profits which he alleged he would have made but for the breach of the contract by the city. The city, by its answer denied liability, alleging that the plaintiff broke the contract and affirmatively set up a counterclaim in damages therefor. A jury was called and sworn to try the case. At the close of the evidence on behalf of the plaintiff, the defendant was permitted by stipulation of the parties to withdraw its counterclaim without prejudice, and thereupon the city moved for a nonsuit, which was granted, and the plaintiff has appealed from the judgment of nonsuit.

Article 8 of the contract provides:

'The engineer shall decide as to the meaning and intent of any and all portions of these specifications, or of the drawings, where the same may be found obscure or in dispute * * *

'The engineer shall decide all questions which may arise as to measurements of quantities and the fulfillment of these specifications, and shall determine all questions respecting the true construction or meaning of the drawings and specifications, and his determination and decision shall be final and conclusive, subject to revision by arbitration as hereinafter provided.

'In the event the contractor does not agree with the engineer's decision or interpretation as provided for in this article 8, then he shall not proceed with the work specifically affected by such decision or interpretation of the engineer until he has first notified the city of Walla Walla that he does not agree with the engineer's decision on the question in controversy, which notice shall be in writing, specifying the differences existing, signed by the contractor and delivered to the clerk of said city, and the contractor shall then wait 48 hours for the action of the city of Walla Walla before proceeding with the work specifically affected by the disagreement. After said 48 hours have elapsed the contractor shall proceed with the work as directed by the engineer unless the city of Walla Walla in writing directs him in the premises, in which event he shall follow the said directions. No additional compensation shall accrue to the contractor by reason of said delay. Unless these conditions are complied with by the contractor he shall forfeit all his rights of appeal from the engineer's decision as provided for in article 9.'

Article 9 of the contract provides:

'In the event the contractor desires to appeal from the engineer's decision a board of arbitration shall be created to consist of the following members: The engineer, the contractor's engineer, and these two members to select by mutual agreement the third member of said board. The engineer in this particular instance is intended to imply the chief engineer himself. The decision and award of said board of arbitration shall be made in writing to both parties to the contract, and when so made shall be binding to both parties. * * * Such arbitration is intended to avoid litigation and a written offer to submit thereto by either party to the contract, followed by such arbitration (if said offer is accepted and acted upon within twenty [20] days after the same is made) shall be a condition precedent to any action at law by either party under the contract.'

On May 9 the appellant addressed a written communication to the city and filed it with the city clerk objecting to the estimates made by the city's engineer for work to May 1, claiming a difference of $1,500, and stating that it would be necessary for him to be paid that additional amount on or before May...