McConnell v. Gordon Const. Co.

• Decision Date: 13 March 1925
• Docket Number: 18938.
• Court: Washington Supreme Court
• Parties: McCONNELL v. GORDON CONST. CO. et al.

233 P. 926

133 Wash. 405

McCONNELL v. GORDON CONST. CO. et al.

No. 18938.

Supreme Court of Washington

March 13, 1925

Department 1.

Appeal from Superior Court, King County; Hall, Judge.

Action by E. W. McConnell against the Gordon Construction Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Riddell & Brackett and Peters & Powell, all of Seattle, for appellants.

Chadwick McMicken, Ramsey & Rupp, Hartman & Hartman, and C. R. Hovey all of Seattle, for respondent.

PARKER J.

The plaintiff, McConnell, commenced this action in the superior court for King county seeking recovery of damages alleged to have resulted to him from the defective construction of a building which had been constructed for him by the defendant construction company under a contract for the faithful performance of which the defendant insurance company had as surety executed a bond. A second trial in the superior court, sitting with a jury, resulted in verdict and judgment awarding to McConnell recovery against the construction company in the sum of $12,740, and against the insurance company as surety upon the bond in the sum of $7,500, that being the amount of the bond. From this disposition of the case the construction company and the insurance company have both appealed to this court.

The building contract in question is in writing in the form of a proposal made by the construction company to McConnell and his acceptance indorsed thereon. In so far as we need here notice its language, it reads as follows:

'We will furnish drawings and specifications by Harry Weatherwax of 503 Arcade Building, Seattle, Wash., and furnish all material and labor and construct for you the Monitor & Merrimac Building, as per Weatherwax' plans with additional work later to be specified, at Elichs' Gardens, Denver, Colo., for the sum of sixteen thousand ($16,000.00) dollars.

'We will build in a substantial and workmanlike manner the Monitor & Merrimac Building, which will be a substantial reproduction of the Monitor & Merrimac Building on the Pay Streak, A. Y. P. Exposition with some additions and changes as follows: * * *

'We will give a bond of seventy-five hundred ($7,500.00) dollars in some responsible bonding company, guaranteeing the faithful performance of our part of this contract.'

There is also contained in the proposal some general specifications touching the manner of the construction of the building. Soon after the signing of this proposal and acceptance the drawings and specifications were completed by the architect and the bond was executed by the insurance company; the contract, including the drawings and specifications, being referred thereto therein as the contract secured. The construction of the building at Denver was then proceeded with until completion. The building being apparently constructed according to the contract and the drawings and specifications in a workmanlike manner McConnell notified the company of its completion, and a short time thereafter paid to the construction company the full contract price of $16,000. Some two weeks thereafter the building collapsed, resulting in damages to McConnell, for which he seeks recovery. A former trial was had in the superior court resulting in a verdict and judgment in favor of the construction company, from which McConnell appealed to this court, which judgment was reversed for error occurring in that trial, more particularly because of erroneous admission of evidence therein tending to vary the terms of the building contract, that is, tending to show that the parties intended the drawings and specifications to be furnished by McConnell; this evidence being introduced with a view of exonerating the construction company from all liability with reference to the deficiency of the drawings and specifications. Thereupon this court awarded a new trial to McConnell, holding that the words of the accepted proposal that 'we will furnish drawings and specifications' are plain and unambiguous as putting upon the construction company full responsibility for the sufficiency of the drawings and specifications. 105 Wash. 659, 178 P. 823. Thereafter the construction company and the insurance company timely filed their amended answer seeking reformation of the building contract, as an affirmative defense, in addition to its other defenses, alleging in substance that by mutual mistake of both parties the words 'we will furnish drawings and specifications' were intended to read 'we will pay for drawings and specifications.' This affirmative allegation made by the construction company was...