McConnell v. Gordon Const. Co.

• Decision Date: 28 February 1919
• Docket Number: 15171.
• Citation: 178 P. 823,105 Wash. 659
• Court: Washington Supreme Court
• Parties: McCONNELL v. GORDON CONST. CO. et al.

178 P. 823

105 Wash. 659

McCONNELL v. GORDON CONST. CO. et al.

No. 15171.

Supreme Court of Washington

February 28, 1919

Department 1.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by E. W. McConnell against the Gordon Construction Company and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Hughes, McMicken, Ramsey & Rupp, and John P Garvin, all of Seattle, for appellant.

Edwin H. Flick and Peters &Powell, all of Seattle, for respondents.

MACKINTOSH J.

The respondent Gordon Construction Company, at Seattle, on November 3, 1909, wrote to the appellant at Denver, Colo., a letter, offering to construct for him a building substantially a reproduction of one then situated at the A-Y-P-Exposition, in Seattle. This letter contained the following:

'We will furnish drawings and specifications by Harry Weatherwax * * * and furnish all material and labor and construct for you the 'Monitor and Merrimac' building, as per Weatherwax's plans. * * * We will build in a substantial and workmanlike manner the 'Monitor and Merrimac' building, which will be a substantial reproduction of the 'Monitor and Merrimac' building on the 'Pay Streak,' A-Y-P-Exposition, with some additions and changes, as follows. * * *'

The offer contained in this letter was accepted by the appellant and the respondent construction company proceeded with the construction of the building, having furnished a bond guaranteeing the faithful performance of the contract with the respondent insurance company as surety. The construction company completed the building and turned the same over to the appellant. Ten days later the building suddenly collapsed. The appellant reconstructed the building, and instituted this action to recover the cost of such reconstruction and the damages resulting from the collapse.

The appellant's complaint was based upon his allegation that the construction company had improperly constructed the footings under the three columns supporting the two trusses which carried the principal weight of the structure; that, according to the plans and specifications these footings should have had a bearing surface of 20 square feet, whereas, in fact, they were originally constructed with a bearing surface of only 16 square feet, and subsequently new concrete was added to make them of the required area, and the columns supporting the trusses were then placed directly over the union between the old and new concrete, which resulted in the breaking of the footings at the point of union. The construction company admitted the collapse of the building and in a general denial denied the allegations of negligence, and, as an affirmative defense, alleged that the collapse was caused by the addition of two tons of weight upon the trusses by reason of changes of construction ordered by the appellant. This affirmative matter was denied in the reply. The appellant's testimony was taken by depositions, and several months were consumed in preparing the case for trial, and during this time, and while the appellant's testimony was being produced before the jury, the respondent construction company gave no intimation that any other issue than that especially raised by the pleadings was to be presented. The construction company, however, was allowed, when presenting its defense, to introduce evidence that the plans were inherently defective in that the trusses were insufficient, as designed, to carry the weight which, of necessity, they must bear. This testimony was introduced over the objection of the appellant that the construction company, having furnished the plans, was liable for any defects therein, and would be responsible for the collapse of the building if it were occasioned by the inadequacy of such plans. Further objection was made to the introduction of this evidence upon the ground that it had not been affirmatively pleaded as a defense. The construction company was also allowed to introduce evidence showing an additional weight of 17 tons to have been placed upon the trusses, this weight having been imposed by changes not contemplated by the plans, but ordered during the construction of the work by the appellant. Objection was made to this testimony on the ground that the affirmative defense only claimed that an additional weight of two tons had been added. A verdict was returned against the appellant and in favor of the respondent upon a counterclaim which had been interposed for extra work done.

The testimony introduced respecting the adequacy of the plans...