Maeder Steel Products Co. v. Zanello

• Decision Date: 20 November 1923
• Parties: MAEDER STEEL PRODUCTS CO. v. ZANELLO ET AL.
• Court: Oregon Supreme Court

220 P. 155

109 Or. 562

MAEDER STEEL PRODUCTS CO. v. ZANELLO ET AL.

Supreme Court of Oregon

November 20, 1923

Department 2.

Appeal from Circuit Court, Multnomah County; D. R. Parker, Judge.

Action by the Maeder Steel Products Company against Fred Zanello and another, copartners doing business as Zanello Bros. Judgment for plaintiff, and defendants appeal. Affirmed.

The Maeder Steel Products company, a corporation, as plaintiff instituted this action against Fred Zanello and J. J Zanello, copartners doing business under the firm name of Zanello Bros., as defendants. The complaint avers, among other things:

"That heretofore, to wit, between the 24th day of March, 1920 and the 30th day of October, 1920, plaintiff sold and delivered to defendants, at their special instance and request, goods, wares and merchandise, at the agreed price of $13,033.75, and thereby said defendants became indebted to plaintiff in such sum of $13,033.75."

Plaintiff then alleges that no part of the $13,033.75 has been paid except $11,752.56, leaving a balance due, owing, and unpaid from the defendants by reason of the sale and delivery of the goods, wares, and merchandise so sold by plaintiff to defendants, in the sum of $1,281.19. Judgment is demanded for that balance.

Defendants in their answer, admit the sale and delivery of merchandise to them by plaintiff as averred in the complaint, but deny that they became indebted to plaintiff, on account of such sale, in the sum of $13,033.75, or in any greater sum than $12,283.75. Defendants allege that they have paid to plaintiff the sum of $11,650 in cash and $102.56 in lumber on account of the merchandise mentioned in plaintiff's complaint, and they then aver that, in addition to the payments aggregating $11,752.56, they are entitled to a further credit of $182 against the unpaid balance, upon two counterclaims set forth in their answer, leaving a balance now due to plaintiff from defendants in the sum of $349.19, and no more.

Defendants' first counterclaim is based upon an alleged agreement existing between the plaintiff and defendants to cut the purchase price of the merchandise in the sum of $68.25 by reason of a change in the plans of the Labor Temple which reduced the amount of steel the plaintiff was required to furnish to the defendants under its contract with them. The second counterclaim, in the sum of $113.75, is based upon a claim for labor performed by the defendants in bending and cutting steel at the instance and request of the plaintiff.

The case was tried by the court without the intervention of a jury. Based upon findings of fact and conclusions of law, the counterclaims of the defendants were disallowed by the court and judgment entered in favor of the plaintiff in the full sum of the balance of $1,281.19 alleged in the complaint. The defendants appeal from the rulings of the court in admitting certain evidence and excluding other evidence, in making findings of fact in favor of the plaintiff, and in refusing to make findings of fact requested by the defendants. Defendants assert:

"That there are not sufficient findings of fact to sustain the judgment, and that there is no evidence to sustain the alleged findings of fact."

A. H. Tanner, of Portland, for appellants.

W. G. Smith, of Portland (Winter & Maguire, of Portland, on the brief), for respondent.

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

The sum of $13,033.75, being the total averred value of the wares and merchandise sold by the plaintiff to the defendants at the times mentioned in the complaint, is made up of the follwing items: $11,150, cost of reinforcing steel supplied by the plaintiff to the defendants in the construction of the Labor Temple in Portland, Or.; $133.75, amount due and owing to plaintiff from defendants on an existing open account at the time this action was filed; and $1,750, amount due and owing plaintiff from defendants for steel girders supplied by plaintiff to defendants. Regarding the last two items, there seems to be no dispute between the parties. But there is a controversy in the matter of the amount of the bid for furnishing the steel used for reinforcing concrete in the construction of the Labor Temple, and in the matter of the counterclaims. The defendants allege and testify that the bid submitted by plaintiff was in the amount of $10,400, and not the sum of $11,150.

The amount of the plaintiff's bid for furnishing the steel, and the acceptance thereof by the defendants, was a question of fact, to be determined by the trial court. It is elementary, in the law of contracts, that a bid or offer, to become a contract, must be accepted. The plaintiff claims that its bid of $11,150 was accepted. This the defendants deny, and assert that their letter hereinafter set out was not an acceptance of plaintiff's bid of March 8, 1920. For the purpose of furnishing proof of the bid of $11,150, plaintiff offered in evidence a carbon copy of a letter alleged to have been written by it to defendants. This letter, which was received and marked Exhibit 1, reads as follows:

"March 8, 1920.

"Zanello Bros., Portland, Oregon.

"Gentlemen:

In reply to your verbal inquiry for a quotation on reinforcing steel for the Labor Temple, we are pleased to quote you the sum of $11,150.00, f. o. b., for all reinforcing steel bars, cut, bent, bundled and tagged, ready to place in the forms, including the fabrication of all columns. This quotation is based on delivery from warehouse, and, as our mill has promised shipment this week of all our back orders, we see no reason for delay in delivery. Trusting that this figure may be low enough to warrant giving us the order, we remain,

"Very truly yours,

"The Maeder Steel Products Co."

A. L. Maeder, president of the plaintiff corporation, testified:

"That is an exact copy of the letter I put in Mr. J. J. Zanello's hand. He took the letter and he read it and he says: 'I have to consult my brother Fred about it, and I will let you know later.' That was his exact words, and that is an exact copy."

For proof of the acceptance of the bid, a written communication from Zanello Bros. by J. J. Zanello was adduced in evidence. It reads:

"Portland, Oregon, March 18, 1920.

"Maeder Steel Products Co., Portland, Oregon. Gentlemen: Attention Mr. Maeder. We wish to advise that the work on our Labor Temple job is scheduled to begin within the next two weeks, and as the excavations are already completed we will need steel as soon as we get started. We do not wish to be held up on this work and request that you start to get the steel at once. You realize that every day we are held up means a big loss, and we wish to avoid same. We are, therefore, now notifying you to prepare the steel. Trusting that you will have the same in stock so as to give us the same good service you have in the past, we remain,

"Very truly yours,

Zanello Bros.,

"By J. J. Zanello."

The two letters form the basis of this action.

The testimony of D. H. Rowe and Thos. Keene is corroborative of the above matter.

The showing made by the plaintiff was bitterly contested by the defendants. Much of the testimony in the record is in conflict. Trial by jury was waived in accordance with the provisions of section 157, Oregon Laws, and at the conclusion of the hearing the court made findings of fact and conclusions of law. Where a case is tried by the court without the intervention of a jury, after the evidence has been introduced the court is required, in making its decision, to state separately the facts found and the conclusions of law, and judgment shall be entered in accordance therewith. Oregon Laws, § 158. The defendants assert that the findings are contrary to the weight of the evidence.

It is settled in this jurisdiction that the findings of fact, being deemed a verdict, cannot be set aside on appeal if there is some competent evidence to support each material allegation of the complaint. Lancaster T. & R. Co. v. McGraw, 99 Or. 406, 195 P. 815; Cannon v. Farmers' Union Grain Agency, 103 Or. 26, 34, 202 P. 725, and cases there noted.

The defendants attack the sufficiency of the findings of the trial court to sustain the judgment.

"Finding. A word which imports the ascertainment of a fact in a judicial proceeding, and commonly is applied to the result reached by a judge. * * *

"Finding of Fact. A determination by a court, found on the evidence of a fact averred by one party and denied by the other. * * *"

25 C.J. 1133.

A "fact or matter at issue" is that upon which the plaintiff proceeds by his action, and which the defendant controverts in his pleading. Caseday v. Lindstrom, 44 Or. 309, 75 P. 222.

"Evidentiary fact. A fact furnishing evidence of some other fact." 23 C.J. 174.

See, also, Black's Law Dictionary, 475.

Conclusions of fact are inferences drawn from the subordinate or evidentiary facts. Caywood v. Farrell, 175 Ill. 480, 482, 51 N.E. 775. To the same effect is Brown v. Aurora, 109 Ill. 165, 167.

Findings of fact by the trial court are analogous to, and have the effect of, a special verdict. Turner v. Cyrus, 91 Or. 462, 179 P. 279; Oregon Home Builders v. Montgomery Inv. Co., 94 Or. 349, 184 P. 487. In the latter case this court says (94 Or. 355, 184 P. 489):

"Generally a special verdict must pass upon all the material issues; and yet a special verdict will be adequate if it states sufficient findings on an issue which ultimately determines the case and necessarily supports the judgment rendered so that other issues in the controversy become immaterial." Our statute providing for findings is satisfied by a statement of the ultimate facts on which the law must determine the rights of the parties. As said in Norris v Jackson, 9 Wall. 127, 19 L.Ed. 608:

"It is not a

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