James v. City of Seattle, 22951.

• Citation: 300 P. 515,163 Wash. 190
• Decision Date: 24 June 1931
• Docket Number: 22951.
• Parties: JAMES v. CITY OF SEATTLE.
• Court: United States State Supreme Court of Washington

300 P. 515

163 Wash. 190

JAMES v. CITY OF SEATTLE.

No. 22951.

Supreme Court of Washington

June 24, 1931

Department 2.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Action by G. P. James against the City of Seattle. From a judgment granting inadequate relief, plaintiff appeals.

Reversed and remanded, with direction.

Shorts & Denney and Clinton H. Hartson, all of Seattle, for appellant.

A. C Van Soelen and J. Ambler Newton, both of Seattle, for respondent.

BEELER J.

The appellant, a contractor, brought this action against the respondent, the city of Seattle, to recover the unpaid part of the final estimate under a contract for the construction of a street railway trestle. For a thorough understanding of the controversy, a rather detailed statement of the pertinent facts i necessary. There is no dispute about the facts, except as will be indicated.

The respondent, the city of Seattle, owns and operates a street car system acquired under Rem. Comp. Stat. § 9488 et seq. No general indebtedness was incurred in its acquisiion, and apparently none has since been incurred in the making of additions, betterments, and extensions. See Twichell v Seattle, 106 Wash. 32, 179 P. 127; Asia v Seattle, 119 Wash. 674, 206 P. 366; Hayes v. Seattle, 120 Wash. 372, 207 P. 607.

By Ordinance No. 57,355, approved April 22, 1929, the city council adopted a plan for certain additions and betterments to the street railway system and provided for paying the cost thereof out of future earnings of the system, and created a special fund into which certain sums derived from future earnings should be placed and out of which, and only out of which, warrants issued for the cost of the additions and betterments should be paid.

By Ordinance No. 57,899, approved July 11, 1929, the board of public works was directed to proceed with the construction of the additions and betterments proposed by the previous ordinance, and to do so by the letting of contracts. In this ordinance, the following occurs:

'Section 2. That the said Board of Public Works be, and it is hereby, authorized and directed to provide in any such contract for the delivery to the contractor, at not less than par and accrued interest, in payment for work performed thereunder, warrants, the issuance of which is authorized by said Ordinance No. 57,355, and to grant to the contractor, in lieu of taking such delivery, a continuing option to purchase, at not less than par and accrued interest, a sufficient amount of such warrants to complete said contract, subject, to the prior right of the city itself to sell such warrants and to make payments under such contract in cash, and in the event the contractor shall exercise such option, the proceeds derived by the City therefrom shall be placed in the Railway Extension Warrant 1929 Construction Fund (the special fund established by Ordinance No. 57,355) and held in trust to the extent, and for the payment, of the amounts becoming due under such contract. * * *'

One part of the construction work so authorized is the subject of this action, viz., a trestle on West Spokane street. Bids were invited in the usual manner. The advertisement described the work as 'the construction of a street railway trestle on West Spokane Street from First Avenue South to East Marginal Way as authorized by Ordinance No. 57,899, in accordance with the plans and specifications on file in the office of the secretary of the Board of Public Works and the Superintendent of Public Utilities, respectively.'

The specifications referred to in the advertisement stated that, 'The work to be done under these specifications covers the construction of an elevated trestle on West Spokane Street, connecting to the present elevated structure at East Marginal Way and extending to First Avenue South.' Then follows a reference to certain drawings, which are declared to be a part of the specifications. The drawings do not show rails, overhead spans, or trolley wires. Details of the work are then described with considerable minuteness. In the course of the description it is stated that, 'Street car service will be discontinued on a Saturday night at 8:00 P. M., the rails and ties stripped off (of certain girders in the old trestle that were to be used in the new) by the Municipal Street Railway, and the contractor will then remove the girders,' etc. Further along occurs this paragraph:

' Rails and Overhead: Seattle Municipal Railway shall furnish and lay all rails with the necessary plates, bonding, etc. Contractor will furnish and erect poles and Seattle Municipal Street Railway will furnish and install overhead spans, trolley wires, etc.'

The final paragraph of the specifications reads as follows:

' Contract: This is a lump sum contract and shall include furnishing labor and material necessary to build trestle as per plans and specifications; do all clearing and grading within the outermost limits of trestle and burn refuse; do all excavating for concrete footings and bulkheads, or otherwise necessary excavation to complete trestle and backfill so as to leave ground with a smooth surface. Contractor shall pay Seattle Municipal Street Railway a lum sum of $8,508.00 in cash for the work that they perform.' (Italics ours.)

Appellant submitted a bid for the work, proposing 'to furnish all material and perform all labor which may be required to complete said work' according to the plans and specifications 'at the following prices, to-wit: Street Railway Trestle, Fifty-one Thousand Nine Hundred and Forty-one Dollars $51,941.00) lump sum.' (Here follow unit prices for extra work not called for on the plans.)

Before submitting the bid, however, and before completing his calculations upon which ultimately the lump sum was based, the appellant having some doubt as to whether the contractor who did the work would receive special fund warrants to the amount of the $8,508 in cash, required by the above-quoted specification to be paid to the Seattle Municipal Street Railway, inquired of the respondent's superintendent of Public Utilities whether warrants would be so received. This inquiry was made pursuant to a caution given in printed 'Instructions to Bidders' accompanying the specifications, to the effect that if there should be any doubt or obscurity as to the meaning of the plans, specifications, proposal, or form of contract, intending bidders should ask the superintendent of public utilities for an explanation before...