Jones Associates, Inc. v. Eastside Properties, Inc.
| Decision Date | 12 August 1985 |
| Docket Number | No. 12722-5-I,12722-5-I |
| Citation | 704 P.2d 681,41 Wn.App. 462 |
| Court | Washington Court of Appeals |
| Parties | JONES ASSOCIATES, INC., Appellant, v. EASTSIDE PROPERTIES, INC., Ken D. and Mary Louise McMillan, husband and wife; and John Does 1-20 and Jane Does 1-20, husbands and wives, respectively, Respondents. |
Van Valin & Watts, Inc., P.S., Charles E. Watts, Bellevue, for appellant.
Waitt, Johnson & Martens, Richard L. Martens, Seattle, for respondents.
Jones Associates, Inc. (Jones Associates) appeals the superior court judgment (1) dismissing its action 1 against Eastside Properties, Inc., et al., (Eastside) for money due under a professional services contract of $15,030 plus interest and (2) awarding Eastside Properties $7,500 for costs, expenses, and attorney fees. We reverse and remand for trial.
In early 1977 Jones Associates, an engineering, consulting, and surveying firm, and Eastside Properties, a real estate development corporation, entered into a professional services agreement. The contract signed by the parties was a preprinted form commonly used by Jones Associates which was modified by an Eastside representative.
Under the contract for a $17,480 fixed fee, including short plat application fees, Jones Associates was to provide a feasibility study, master plan, nine record surveys, and nine short plats for Eastside's 180-acre land parcel. In May, 1978 Jones Associates submitted Eastside's short plat application to the King County Building and Land Development Division, which in July, 1978, gave its preliminary approval with numerous conditions attached. Eastside unsuccessfully appealed the conditions imposed.
To enable Eastside to comply with the imposed conditions, the parties entered into a June 19, 1979 amendment to the original contract, which amendment expressly incorporated all of the original contract's terms. For a $12,550 fixed fee, under the change order Jones Associates was to provide an updated feasibility study, a roadway plan and profile, a design for a water system if not provided by the water district, storm drainage plans submitted for approval, and revised short plats filed for recordation.
Jones Associates claims that it performed all required services under the original contract and the change order. According to Eastside Properties, however, the following two conditions precedent to payment were not met: the original and the updated feasibility studies were not proven to be satisfactory to Eastside, and King County final plat approval was not obtained.
Eastside paid $15,000 to Jones Associates in April, 1980. In March, 1981 Jones Associates brought a money due action against Eastside. At the time of trial Eastside's short plat application still had not been approved, and the extension period to obtain final county approval had expired.
At the end of the plaintiff's evidence the trial court granted Eastside's motion to dismiss the complaint and awarded Eastside $7,500 attorney fees pursuant to the parties' contract. 2 The court's oral decision stated that the dismissal was based upon its interpretation of the unambiguous contract language that obtaining county approval was a condition precedent to contractual payment, which condition had not been met. Jones Associates' reconsideration motion was denied, and this appeal followed.
The issue is whether the trial court erred in dismissing Jones Associates' action against Eastside Properties. Eastside Properties claims that the following contract provision creates a condition precedent to payment: "Engineer shall be responsible for obtaining King County approval for all platting as set forth above." Jones Associates, however, contends that the provision is not a condition precedent but rather merely states that it was to perform all necessary engineering, consulting, and surveying services related to Eastside's short plat application. We conclude that the provision is a promise rather than a condition precedent; thus dismissing the action was error.
Here upon the defendant's motion at the close of the plaintiff's case, the trial court dismissed the action as a matter of law and thus entered no findings of fact or conclusions of law. See Spring v. Dep't of Labor & Indus., 96 Wash.2d 914, 918, 640 P.2d 1 (1982); Logan v. Logan, 36 Wash.App. 411, 415, 675 P.2d 1242 (1984). In such a case the appellate court, like the trial court, looks upon the plaintiff's evidence in its most favorable light and determines whether the trial court correctly applied the law in dismissing the action. Rainier Ave. Corp. v. Seattle, 76 Wash.2d 800, 803, 459 P.2d 40 (1969); N. Fiorito Co. v. State, 69 Wash.2d 616, 619-20, 419 P.2d 586 (1966). Absent disputed facts, the construction of a contract is a matter of law, and the appellate court is in as good a position as the trial court to interpret a contract's meaning. Yeats v. Estate of Yeats, 90 Wash.2d 201, 204, 580 P.2d 617 (1978); In re Estate of Larson, 71 Wash.2d 349, 354, 428 P.2d 558 (1967).
Eastside Properties did not plead the nonoccurrence of a condition precedent "specifically and with particularity," CR 9(c). 3 Even if it had, however, this defense fails.
A condition precedent is an event occurring after the making of a valid contract which must occur before a right to immediate performance arises. Koller v. Flerchinger, 73 Wash.2d 857, 860, 441 P.2d 126 (1968); Silverdale Hotel v. Lomas & Nettleton Co., 36 Wash.App. 762, 770, 677 P.2d 773 (1984). In contrast to the breach of a promise, which subjects the promisor to liability for damages but does not necessarily discharge the other party's duty of performance, the nonoccurrence of a condition prevents the promisee from acquiring a right or deprives him of one but subjects him to no liability. Ross v. Harding, 64 Wash.2d 231, 236, 391 P.2d 526 (1964); 5 S. Williston, Contracts § 665, at 132 (3d ed. 1961).
Whether a provision in a contract is a condition, the nonfulfillment of which excuses performance, depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances. 5 Williston, Contracts (3d ed.) § 663, p. 127.
Ross, supra at 236, 391 P.2d 526; accord, Koller, supra, 73 Wash.2d at 860, 441 P.2d 126. Where it is doubtful whether words create a promise or an express condition, they are interpreted as creating a promise. Ross, supra.
An intent to create a condition is often revealed by such phrases and words as "provided that," "on condition," "when," "so that," "while," "as soon as," and "after."
Vogt v. Hovander, 27 Wash.App. 168, 178, 616 P.2d 660 (1979). Here no such words were used, and it is unclear whether the parties intended obtaining King County approval to be a condition precedent to payment under the contract.
Where the parties' contractual language is ambiguous, the principal goal of construction is to search out the parties' intent. Jacoby v. Grays Harbor Chair & Mfg. Co., 77 Wash.2d 911, 918, 468 P.2d 666 (1970).
Determination of the intent of the contracting parties is to be accomplished by viewing the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.
Stender v. Twin City Foods, Inc., 82 Wash.2d 250, 254, 510 P.2d 221 (1973), quoted in Leija v. Materne Bros., Inc., 34 Wash.App. 825, 829, 664 P.2d 527 (1983). Here an examination of the entire contract, circumstances surrounding the contract's formation, the parties' subsequent conduct, and the reasonableness of the parties' respective interpretations indicates that the parties intended Jones Associates' assumption of responsibility for obtaining King County approval to be a duty under the contract but not a condition precedent to payment.
First, the relevant provision's language in the second typewritten paragraph under "Scope of Services" does not expressly indicate that if King County approval was not obtained, Eastside would not be responsible for any costs whatsoever, as does the preceding typewritten paragraph 4 containing an express condition precedent regarding a satisfactory economic feasibility study. Since the two typewritten paragraphs were inserted into the contract by Eastside, the first typewritten paragraph provides evidence of Eastside's ability clearly and unambiguously to express a condition precedent to payment. Moreover, ambiguous contract language is strictly construed against the drafter. Jacoby, supra; Taylor-Edwards Warehouse v. Burlington Northern, 715 F.2d 1330, 1334 (9th Cir.1983).
Further, other portions of the original contract support Jones Associates' contention that it contemplated its contractual duty to be to perform necessary services related to the short plat application rather than that obtaining King County final plat approval was to be a condition precedent to payment. The "Description of Final Product" lists, besides a development feasibility report and master plan, nine record surveys and nine short plats "in King County format," not "approved by King County." Similarly, the contract states under "Completion of Assignment" that the short plats were to be ready for submission by a certain date, not that they were to have King County approval by a certain date. In addition, while the change order is in accord with Jones Associates' assuming responsibility for obtaining King County final plat approval, the language implies a duty rather than an express condition precedent: One of Jones Associates'services to be performed under the change order was to revise and "file for recordation," not obtain county approval of, the short plats.
Moreover, the respondent's conduct subsequent to the making of the contract supports the interpretation that the parties did not intend...
To continue reading
Request your trial
-
Olympic Pipe Line Co. v. Thoeny, 31613-7-II.
...action. Hensel Phelps Constr. Co. v. King County, 57 Wash.App. 170, 174, 787 P.2d 58 (1990) (citing Jones Assoc., Inc. v. Eastside Prop., Inc., 41 Wash.App. 462, 465, 704 P.2d 681 (1985)). INVERSE The phrase "inverse condemnation" is used to describe an action brought to recover the value o......
-
Saunders v. Lloyd's of London
...favorable to the aggrieved party and determines whether the trial court correctly applied the law. Jones Assocs., Inc. v. Eastside Properties, Inc., 41 Wash.App. 462, 465, 704 P.2d 681 (1985); Rainier Ave. Corp. v. Seattle, 76 Wash.2d 800, 803, 459 P.2d 40 The Court of Appeals stated, as a ......
-
Milwaukie Lumber Co. v. Veristone Fund I, LLC
...740, 718 P.2d 851 (1986). 53. Id. at 742. 54. Id. at 743. 55. Id. 56. Id. 57. Id. 58. CP at 23. 59. Jones Assocs., Inc. v. Eastside Props., Inc., 41 Wn. App. 462, 465, 704 P.2d 681 (1985) (citing Yeats v. Estate of Yeats, 90 Wn.2d 201, 204, 580 P.2d 617 (1978); In re Estate of Larson, 71 Wn......
-
U.S. Bank Nat'l Ass'n v. Roosild
...a conditional intent, not a promise." Tacoma Northpark , 123 Wash. App. at 80, 96 P.3d 454 (quoting Jones Assocs., Inc. v. Eastside Props., Inc. , 41 Wash. App. 462, 467, 704 P.2d 681 (1985) ). The terms "subject to" and "contingent upon" likewise demonstrate an intent to form a condition p......
-
§ 12.7 Standard of Review Applied to Specific Rulings: Civil Cases
...Wn. App. 85, 100-01, 279 P.3d 474 (2012) (whether plaintiff made out a prima facie case); Jones Assocs., Inc. v. Eastside Props., Inc., 41 Wn. App. 462, 465, 704 P.2d 681 (1985) (whether trial court properly applied the law); see also Commw. Real Estate Servs. v. Padilla, 149 Wn. App. 757, ......
-
Table of Cases
...759 P.2d 471 (1988): 16.2(2) Jones, In re, 129 Wn. App. 626, 120 P.3d 84 (2005): 24.11 Jones Assocs., Inc. v. Eastside Props., Inc., 41 Wn. App. 462, 704 P.2d 681 (1985): 12.7(7) Jones v. City of Seattle, 179 Wn.2d 322, 314 P.3d 380 (2013): 12.5, 12.7(5), 12.7(15), 12.7(19) Jones v. Dep't o......