De Mattos v. Jordan

• Decision Date: 09 October 1896
• Citation: 15 Wash. 378,46 P. 402
• Parties: DE MATTOS v. JORDAN ET AL.
• Court: Washington Supreme Court

46 P. 402

15 Wash. 378

DE MATTOS v. JORDAN ET AL.

Supreme Court of Washington

October 9, 1896

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by James P. De Mattos against R. C. Jordan, R.I. Morse, H. A White, Carmi Dibble, and Chris Semon. Judgment for defendants, and plaintiff appeals. Reversed.

Kerr & McCord and Bruce, Brown & Cleveland, for appellant.

Dorr Hadley & Hadley, Fairchild & Rawson, and Black & Leaming, for respondents.

ANDERS J.

On April 30, 1890, the plaintiff entered into a contract with defendant Jordan whereby the latter agreed to furnish all material and to erect for the former, in the city of New Whatcom, a three-story and basement brick and stone building in accordance with plans and specifications prepared by one W. A. Ritchie, supervising architect, and which were made a part of the contract. By the terms of the contract, the building was to be completed on or before August 30th, and in default thereof the said contractor agreed to pay the owner $50 as and for liquidated damages for every day that the work should remain unfinished. The plaintiff agreed to pay to the contractor, Jordan, for the material and labor furnished, and the doing and completing of the work, the sum of $23,659, good and lawful money of the United States, subject to additions or deductions on account of alterations, modifications, or additions as provided for in the contract, payments to be made upon estimates on the first Tuesday of each month, covering all materials furnished and labor performed on the work during the month preceding, as computed by the architect, less 20 per cent. of the valuation of the work completed, and as certified by the architect, which was to be paid at the expiration of 10 days after the completion and final acceptance of the work and the building. The contract provides that the contractor shall perform any work required in alteration, modification, or addition which the architect and owner shall demand as the work progresses upon receiving written authority from the architect, approved by the owner, specifying the kinds and qualities; and in every such case the price for such alterations, modifications, and additions must be agreed upon, and a fair and reasonable valuation of the work shall be added to or be deducted from this contract price; and, should any differences arise between the parties thereto respecting such valuation, the same shall be decided by three experts, etc. And the specifications provide that no bills for extra work shall be allowed unless the same have been authorized by the owner and the architect. It is also stipulated in the contract that, in case the contractor should not complete the building, the owner may do so, and charge the expense to the contractor; and "the expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, shall be audited and certified by the architect, and his certificate thereof shall be conclusive upon the parties." Another stipulation in the contract was that should the architect, prior to each payment, receive notice from any person or persons that they held a claim against the said building for material or labor chargeable to the contractor, for which, if established, the owner might be made liable, the owner should have the right to retain out of the payment then due, or thereafter to become due, an amount in addition to the 20 per cent. retained sufficient to indemnify him against such claims until the same should be actually satisfied, and receipts in full for the same have been furnished by the contractor. To secure the faithful performance of this contract, the defendant, Jordan, as principal, and the other defendants, as sureties, executed to the plaintiff their joint and several bond in the sum of $20,000, conditioned to be void "if the said R. C. Jordan shall well and truly perform the said contract, and shall erect and complete the said building in accordance with the said drawings, plans, and specifications and the terms and conditions of that certain contract, and within the time therein mentioned, and shall pay all laborers, mechanics, material men, and persons who shall supply the said contractor with any materials, goods, or labor of any kind, all just debts due or thereafter to become due such persons, incurred in carrying on this work." Jordan entered upon the performance of the contract, but on August 7, 1890, he abandoned the work, and absconded, leaving the building but partially constructed. The sureties having declined to finish the building at the request of the plaintiff, and having notified the plaintiff that they denied and disclaimed all liability upon the bond for damage sustained through the failure of their principal, Jordan, to perform the conditions of his contract, plaintiff himself caused the building to be completed, and subsequently brought this action upon the bond to recover the amount alleged to have been necessarily paid in excess of the contract price in finishing the building and for labor performed and materials furnished on account of the contractor, the amount of mechanics' and laborers' liens established against the building, and the damages caused by the failure of the contractor to complete the structure within the time limited by the contract. The defendants filed separate answers, and the sureties defended, on the alleged grounds that there was no consideration for the execution of the bond in controversy; that material changes were made and permitted by plaintiff in the building at an additional cost, and in a manner not authorized by the contract, and without their knowledge or consent; that the plaintiff violated the conditions of the contract on his part by making payments in advance, and without the certificate of the architect, and by compelling Jordan to accept as payments his own obligations, whereby he was forced to abandon the work (which latter defense was also interposed by Jordan); and that the questions involved in this action are res judicata, especially as to defendant Dibble. The cause was tried to a jury, and a general verdict was returned in favor of the defendants, and the jury also made and returned special findings upon certain questions of fact, which were submitted to them by the court, at the instance of the defendants. A motion for a new trial was made and denied, after which judgment was rendered for the defendants upon the verdict, and the plaintiff appealed.

The facts found by the jury were that, under the plans, specifications, and contract, the piers between the arches on Holly street and on Elk street were to be built of brick, but were constructed of stone; that the inner basement walls were to be of brick, and the first 24 inches were of stone, and the remainder of brick; that the height of the third story as designated on the plans and specifications was 11 feet 10 inches, but as constructed was 12 feet 2 inches; that the third story was completed by appellant; that changes were made in the time, manner, and form of payments, by paying in advance of estimates, and by paying in depreciated paper; and that the change from brick to stone in the construction of piers increased the cost of the building in the sum of $335. No other special findings of facts were made or requested. The modifications or changes in the construction of the basement walls and of the piers occurred while the work was in charge of the contractor, but the change in the height of the ceiling of the third story was made after the abandonment of the contract by Jordan, and during the time when appellant was in charge of the construction.

Although the bond in question was dated May 1st, it appears from the notarial certificate attached thereto that it was not acknowledged until the 8th of that month, and there is some evidence tending to show that it was not executed until the date last mentioned, and that at that time Jordan had some men upon the premises designated in the contract engaged in work preparatory to the erection of the building. Upon this evidence is based the claim of respondents that there was no consideration for the bond. This position is not tenable. We find nothing in the evidence showing that Jordan was in possession of the premises by direction or request of appellant, or that the giving of the bond was not an inducement to the signing of the contract on the part of the appellant. On the contrary, it fairly appears from the testimony of appellant which is not contradicted, that it was understood and intended that a bond should be given to secure the performance of the contract, and that, in fact, the contract was executed in duplicate, and the duplicate copy which Jordan received was delivered to him at the time he delivered his bond to appellant. That being so, it cannot be said that the bond was executed without consideration.

There is no evidence tending to prove, and in fact it is not claimed, that there was any alteration of the plans and specifications as originally prepared. The changes which were made were mere deviations from them as the work progressed. Some other changes were made besides those mentioned in the special findings of the jury, while Jordan was directing the work. The height of the first-story ceiling was diminished some two inches. Two mantels were changed from wood to marble, and some other less material changes and modifications were also made. Appellant contends (1) that these changes are, as matter of law, wholly immaterial, and that the court erred in submitting the defense based thereon to the jury; (2) that, if material, the court erred in refusing to instruct the jury, as requested by appellant that, if any changes were made, it would be their duty to determine...