McBride v. Callahan

• Decision Date: 25 July 1933
• Docket Number: 24520,24521.
• Citation: 24 P.2d 105,173 Wash. 609
• Parties: McBRIDE v. CALLAHAN et al. CALLAHAN et al. v. McBRIDE et al.
• Court: Washington Supreme Court

24 P.2d 105

173 Wash. 609

McBRIDE v. CALLAHAN et al.

CALLAHAN et al. v. McBRIDE et al.

Nos. 24520, 24521.

Supreme Court of Washington

July 25, 1933

Department 1.

Appeal from Superior Court, Cowlitz County; Homer Kirby, Judge.

Action by H. McBride against H. E. Callahan and others consolidated for trial with an action by H. E. Callahan and another against H. McBride and another. From a judgment dismissing the first action, plaintiff H. McBride appeals, and, from a judgment for plaintiffs in the second action, defendants H McBride and another appeal.

Judgments in both actions reversed, and cause remanded, with directions.

Caldwell & Lycette and William H. Brinker, all of Seattle, for appellants.

Dwinell & McCoy, of Longview, and W. H. Sibbald, of Kelso, for respondents.

MILLARD Justice.

On January 12, 1931, H. McBride entered into a written contract with Cowlitz county for clearing and grubbing, in accordance with the plans and specifications attached to the contract the right of way for a highway known as the Spirit Lake road. The specifications read as follows:

'The right of way shall be cleared and grubbed to a width of forty (40) feet, twenty (20) feet on each side of the center line. Clearing will in all cases conform to the stakes set by the Engineer.

'Clearing.

'Within the lines staked by the Engineer, all trees, brush, logs and down trees with a diameter of less than nine (9) inches, and other organic matter shall be removed and burned within the right of way. Trees greater than nine (9) inches in diameter shall be cut into lengths of not less than thirty-two (32) feet and decked outside the right of way limits, all limbs and tops being burned on the right of way.

'Grubbing.

'Within the lines staked by the Engineer, all stumps and roots embedded in the ground shall be removed and piled outside the right of way limits. Burning of same will not be required.

'Area to be Cleared and Grubbed.

'The area to be cleared and grubbed under this contract is 36.3 acres.'

The National Surety Company was surety upon McBride's bond. Between January 12th and February 19th McBride had a crew engaged in the work of clearing and grubbing the right of way for the road. On February 19, 1931, McBride entered into a written contract with H. E. Callahan and Harry F. Fleetwood, who had commenced that work a few days prior to the signing of the contract, for the clearing and grubbing. Fleetwood was 40 years old and had been engaged in the logging industry practically all of his life. Callahan had been engaged in logging and woods work for ten to fifteen years. Both testified they were experienced in the character of work required under their contract which they read Before signing. They also visited the site of the proposed improvement prior to signing the contract. The Royal Indemnity Company was surety upon the bond of the copartners Callahan & Fleetwood.

The subcontract provides that the copartners shall perform the work of clearing and grubbing in accordance with the specifications 'hereinbelow set out' and to the satisfaction of the county engineer. Paragraph 1 of the specifications provides that the right of way, as staked by the engineer, 'shall be cleared and grubbed ready for grading.' The second and third paragraphs of the specifications read as follows:

'2. All logs, whether down or standing, at present on said right of way within the lines established by the Engineer shall be piled and decked clear of said right of way to the satisfaction of the County Engineer; all other organic matter shall be removed and cleaned up from said right of way, to the satisfaction of the Engineer in charge. All stumps, roots, whether imbedded in the ground or not, shall be grubbed and removed and cleared and cleaned from the right of way, to the satisfaction of the Engineer in charge. The area to be cleared and grubbed under this contract is approximately thirty six (36) acres.

'3. Said work of the second parties shall leave the right of way ready for grading.'

Paragraph 6 provides that the subcontractors shall pursue the work with all diligence, and that, if the subcontractors fail to pursue the work diligently McBride 'may and he hereby reserves the right to take charge of said work' and finish it at the expense of the subcontractors. The subcontractors (both so testified) continued on the job under their written contract with McBride until April 15, 1931. On that date, being dissatisfied with the progress made by the subcontractors, McBride took over the work and completed it.

McBride instituted an action in King county against subcontractors Callahan & Fleetwood and their surety to recover expense undergone by him on account of defendants' breach of the subcontract. McBride's complaint, in the first cause of action, alleged (paragraph I) that McBride entered into a certain road contract with Cowlitz county; that (paragraph II) McBride entered into a written subcontract with Callahan & Fleetwood, and that a copy of the subcontract was attached to and made a part of the complaint; and that (paragraph III) the subcontractors commenced performance of the subcontract but wholly failed, refused, and neglected to finish the work; that McBride was compelled to complete the work at his own expense and was, in addition, forced to pay many lien claims incurred by the subcontractors, all to his damage in the amount of $13,000.

In their answer the defendants admit, without qualification, paragraphs I and II, and deny paragraph III of the complaint. McBride's second cause of action is particularly against the surety on the subcontractors' bond. It realleges the same facts as the first cause of action. No affirmative defenses were pleaded by either of the defendants. Defendants did not allege that the contract, which they admitted they had made with plaintiff, was impossible of performance, that it was rescinded, abandoned, or modified.

Thereafter the copartnership of Callahan & Fleetwood commenced an action in Cowlitz county against McBride and the surety on his bond to recover for services performed in clearing and grubbing Spirit Lake road. The complaint alleged (paragraph III) that in January, 1931, McBride entered into a contract with Cowlitz county to clear and grub Spirit Lake road, and that the National Surety Company was surety on McBride's bond; and that (paragraph IV) during the months of February, March, April, and May, 1931, the plaintiffs, pursuant to oral agreement with McBride, performed labor and services in clearing and grubbing the right of way at an agreed and reasonable value of an amount stated. Answering, defendants denied paragraph IV of the complaint, alleged that another and prior action was pending between the same parties for the same cause as alleged in the complaint, and, as an affirmative defense, alleged: That, after entering into the contract with Cowlitz county, McBride entered into a subcontract on February 19, 1931, with Callahan & Fleetwood, and that a copy of the subcontract was attached to the answer; that (paragraph III of the affirmative defense), as alleged in paragraph III of McBride's complaint in the action against the subcontractors and their surety, McBride was damnified in the amount of $13,000 by reason of the subcontractors' breach of the subcontract, etc.

Plaintiffs replied as follows: 'Come now the plaintiffs and for their reply to the answer of the defendants herein admit the execution of the instrument set forth as Exhibit 'A' and such further matter as is specifically admitted, qualified or explained in the complaint and except as so admitted, deny said answer and the whole thereof.'

In the second action the subcontractors admitted the execution of the written subcontract. They did not allege in defense of nonperformance impossibility of performance, rescission, or abandonment. McBride's action was transferred to Cowlitz county and consolidated for trial with the subcontractors' action against McBride.

The consolidated causes were tried to the court, which found, in the action instituted by the subcontractors, that on January 13, 1931, Cowlitz county entered into a contract with McBride for the clearing and grubbing of Spirit Lake road, and 'That during the month of February, 1931, defendant McBride entered into a written agreement with the plaintiffs by which the plaintiffs agreed to do certain work upon the right of way for a stated consideration and thereafter went upon the ground and almost immediately thereafter it was found by the plaintiffs that the work agreed upon in said written contract between the parties hereto was impossible of performance; which fact was at all times known to defendant McBride, and that thereupon the plaintiffs herein continued to operate in said work by carrying on the work under oral instructions from the defendant McBride, his agents and employees, and without any stated consideration therefor and that during the months of February, March, April and May of the year 1931, the plaintiffs performed labor and services and furnished labor, provisions, machines, and supplies for the carrying on of said work, to-wit: the construction of said right of way, of the reasonable value of $4145.46.'

The court also found that of the amount due $1,521.71 had been paid by McBride to the subcontractors. Judgment was entered against McBride and his surety in favor of plaintiff subcontractors for the balance found to be due. In the action of McBride against the subcontractors and their surety, the court found:

That Callahan & Fleetwood entered into the written contract in question with McBride in February, 1931, and that thereafter they '* * * attempted to perform their said contract and it was immediately discovered that the same...