Lakeside Pump & Equipment, Inc. v. Austin Const. Co., 44629

Decision Date23 March 1978
Docket NumberNo. 44629,44629
CourtWashington Supreme Court
Parties, 23 UCC Rep.Serv. 886 LAKESIDE PUMP & EQUIPMENT, INC., a Washington Corporation, Respondent Cross-Appellant, v. AUSTIN CONSTRUCTION COMPANY, Appellant, and United Pacific Insurance Company, and Pierce County, the Department of Public Works, Pierce County, Washington, Defendants.

Perkins, Coie, Stone, Olsen & Williams, Richard Twiss, Margaret McKeown, Lee Miller, Seattle, for appellant.

Dennis Perkins, Seattle, for respondent cross-appellant.

HICKS, Associate Justice.

The principal question on this appeal is whether a contract was created between the parties for the furnishing of two pump stations.

Respondent, Lakeside Pump & Equipment, Inc. (Lakeside), supplied an oral quotation to furnish two pump stations to appellant, Austin Construction Company (Austin). Whether this bid was for Lakeside's standard station or for one which met certain specifications was the subject of dispute at trial and provides the focus on this appeal. Austin incorporated the oral quotation in its overall bid on a sewer project in Pierce County and sent Lakeside a purchase order for two pump stations meeting project specifications. The order was conditioned on Austin's obtaining the contract for the project.

Austin was awarded the contract and notified Lakeside that the order was in effect. After considerable fruitless effort to get the project engineer to modify certain of the specifications, Lakeside refused to supply the pump stations to Austin. Because of Lakeside's refusal, Austin was put to markedly greater expense in completing the contract.

Lakeside did furnish several pumps ordered by Austin. Lakeside was paid for two of those pumps but it did not receive payment for others which Austin used in constructing the pump stations which Lakeside refused to supply. After a period of time had elapsed and Austin had failed to pay for all of the pumps, Lakeside declined to perform certain warranty repairs and provide performance tests for the pumps it had furnished. Lakeside sued Austin for the price of those pumps for which it had not been paid, plus interest. Austin claimed offset for warranty repairs and performance tests and counterclaimed for its additional expenses in constructing the pump stations. At trial Austin moved to amend its counterclaim to include profits of 8 percent of the costs incurred. That motion was denied.

The trial court found for Lakeside on its complaint for payment for the pumps, plus interest, and against Austin on its counterclaim for the extra cost of constructing the pump stations. The ruling on the counterclaim was based on the court's determination that no contract was created between the parties. The court also found for Austin on its claim for warranty repairs and performance tests. Judgment was entered accordingly.

Austin appeals only from that part of the judgment determining that no contract existed between the parties. It also appeals from the denial of its motion to amend its counterclaim. Lakeside cross-appeals from that portion of the judgment in favor of Austin. The issue raised on appeal was certified to this court by the Court of Appeals.

As to the existence of a valid contract between the parties, Austin contends that Lakeside's oral bid constituted an offer which it accepted, (1) by its purchase order, or (2) earlier, when it incorporated Lakeside's bid in the overall bid submitted to Pierce County. It argues that Lakeside's bid was for stations which met the specifications. Lakeside contends that its oral quotation to Austin was not an offer in the contractual sense or, if the court should find that an offer had been made, that the purchase order submitted by Austin was not a valid acceptance of that offer. Lakeside asserts the purchase order materially altered its offer by including a requirement that the pump stations "be complete and in full compliance with the plans and specifications, University Place North." In Lakeside's view, the purchase order was no more than a counteroffer, which it never accepted.

In making their respective contentions, both parties rely heavily on factual arguments, quoting frequently from the trial testimony as to the content of the bid. Our inquiry, however, is narrowly limited by the failure of either party to assign error to the trial court's findings of fact. Since no challenge was made to any finding of fact by either party, the trial court's findings become the established facts of the case. Goodman v. Bethel School Dist. No. 403, 84 Wash.2d 120, 524 P.2d 918 (1974). We must decide only whether the challenged conclusions of law are supported by the court's findings of fact. Goodman v. Bethel School Dist. 403, supra ; ROA I-43.

Austin challenges the following conclusions of law:

2. The purchase order prepared by defendant Austin Construction Company and submitted to plaintiff for the two prefabricated pumping stations constituted an offer by defendant Austin Construction Company to purchase said pumping stations.

3. The purchase order referred to in Conclusions of Law Paragraph II was not accepted by plaintiff, either expressly or impliedly.

4. Plaintiff's conduct following receipt of the purchase order referred to in Conclusions of Law Paragraph II was inconsistent with and did not recognize the existence of a contract to supply defendant Austin Construction Company with pump stations which would comply with the project specification.

5. There was no contract between plaintiff and defendant Austin Construction Company for the furnishing by plaintiff of prefabricated pumping stations which would comply with the specifications as prepared by Kennedy Engineers.

(Italics ours.)

In this instance, neither the findings of fact nor memorandum decision 1 is a model of support for these conclusions of law. Counsel can do little about the memorandum decision, but it would seem that each should offer the court such proposed findings of fact as will support the conclusions of law and judgment for which each contends.

The relevant unchallenged findings of fact read as follows:

10. The President of plaintiff met with the local representative of Kennedy Engineers sometime before the bid submittal deadline of the University Place project to discuss the specifications for the project. Following and as a result of that meeting, the local representative of Kennedy Engineers suggested to his people at Kennedy Engineers' California headquarters that changes be made in the final specifications for the University Place project so that the basic pump station manufactured by plaintiff could comply therewith.

11. The final plans and specifications prepared by Kennedy Engineers subsequently were not altered to allow plaintiff's basic pump station design, including electrical control systems, to comply therewith.

13. After submitting its bid on the University Place project, but prior to award, defendant Austin Construction Company sent plaintiff a purchase order for two prefabricated pump stations, which purchase order included the requirement that the pump stations comply with the specifications for the project as written by Kennedy Engineers. On the same date, Austin Construction Company sent plaintiff a purchase order for two separate Cornell pumps.

These findings are amplified by the memorandum decision, where the court said in pertinent part:

Mr. Spaulding, who was in charge of the bid for defendant, Austin, received a verbal quotation from the plaintiff, which he included in the makeup of his total bid, and the testimony is in serious conflict as to what the verbal quotation encompassed. . . .

The testimony is also in conflict as to the reaction of the plaintiff (Lakeside) upon receipt of the purchase orders calling for compliance with the plans and specifications.

(Italics ours.)

At another point in the memorandum decision, the court said:

Mr. Spalding, who prepared the bid and was in charge of the business end of the dealings for ...

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