McDonald v. Supple

• Citation: 190 P. 315,96 Or. 486
• Parties: MCDONALD v. SUPPLE.
• Decision Date: 08 June 1920
• Court: Supreme Court of Oregon

190 P. 315

96 Or. 486

MCDONALD v. SUPPLE.

Supreme Court of Oregon

June 8, 1920

Department 2.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by Robert Wakefield against Joseph Supple, in which Charles McDonald, as executor of Robert Wakefield, who died during pendency of the action, was substituted as plaintiff. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action at law, begun by Robert Wakefield April 17, 1914 in which he set up a cause of action based on a written contract entered into between plaintiff and defendant, and upon an express oral modification of the written contract. The agreement in question required plaintiff to erect and assemble the United States Engineers' dredge hulls Multhomah and Wakiakum, defendant to furnish the materials and to pay plaintiff $15 per ton for every ton of hull material erected and put together, and $7.50 per ton for the assembling of the trusses and ladders. Issues being raised the case proceeded to trial upon the theory that plaintiff was suing for his labor performed and materials furnished under the written contract and the express oral modification thereof as to compensation.

A verdict having been rendered in favor of plaintiff, a motion of defendant for a new trial was granted by the trial court upon the ground that there was no evidence of the alleged subsequent oral modification of the written contract. Upon appeal to this court the judgment of the lower court was affirmed and the cause was remanded. See Wakefield v Supple, 82 Or. 595, 160 P. 376. By leave of the trial court, plaintiff thereupon filed an amended complaint. The defendant moved to strike paragraph VII therefrom, upon the ground that it set up a cause of action inconsistent with and contradictory to the cause of action set forth in the original complaint, and introduced a new cause of action. The motion was denied. Paragraph VII of the amended complaint reads thus:

"That if the materials had arrived fabricated and ready to erect and in proper condition, and in the condition contemplated and agreed upon as hereinbefore set out, the entire work of construction of said two hulls which the plaintiff was to perform, could have been completed within sixty (60) days and it was contemplated and agreed between the parties that the materials would arrive in sufficient quantities to allow the constant and efficient progress of the work within a few days after the 11th day of February, 1913, so that if the materials had arrived within the time contemplated and agreed upon, and in the condition contemplated and agreed upon, all the work which plaintiff was to do could have been finished by the 20th day of April, 1913, and that at the time of entering into said agreement dated February 11, 1913, it was well known to both parties thereto that plaintiff was entering into the same, because plaintiff had available large numbers of competent workmen, who would be available for the period of time required to finish the work with the materials furnished in the condition and in the time contemplated, and that by using said men in said period that plaintiff and defendant both knew plaintiff would be able to do said work much more cheaply than if plaintiff was to be required to do the same at a later period during the summer and fall months, because, as plaintiff and defendant both knew, labor conditions in and about the city of Portland during the summer and fall months would be and were substantially different, in that during the summer and fall months plaintiff would be required to and did pay about twice what workmen could have been hired for if the work had been done in the time and was of the kind contemplated and agreed upon when the agreement of February 11, 1913, was entered into; that, if the materials had arrived at the time and in the condition contemplated and agreed upon, plaintiff could have performed said work at about the cost of $15 per ton for the hull material, and about $7.50 per ton for the trusses and ladders, but because the material did not arrive until about the 15th day of June, 1913, and because the defendant was constantly advising plaintiff that the material would arrive within a day or two, plaintiff was required to and did keep large quantities of equipment on hand ready for use and was required to and did keep large numbers of men on hand, all of which largely added to the expense and burden of doing said work and thereby greatly damaged plaintiff; that when the materials actually arrived their defective condition prevented the men from expeditiously handling the work and interfered with the progress of the workmen to the extent that only about one-third of the amount of work was performed by the workmen of what would have been performed with proper materials, and only about one-third efficiency could be obtained in the use of the plaintiff's equipment, and when the materials arrived their condition of themselves caused the men to many times a day stand idle at different parts of the work until the defective condition of the material could be remedied; that the ways furnished by the defendant for the construction of said two hulls were upon a steep slope, and because the materials did not arrive so that the lower hull could be promptly completed the high spring waters of the Willamette river came upon and over said hull during the course of construction after considerable work had been done thereon, and filled all the joints with sand and débris, thereby causing and requiring the cleaning of said joints, the partial dismantling of the work, and great trouble, annoyance, and confusion, and as a result purely of the defaults and breaches on the part of the defendant the plaintiff was required to and did perform labor and services and furnish materials in the construction of said two hulls, which were totally unlike and had no relation to the kind of work, labor, and materials it was contemplated and agreed plaintiff was to furnish under said agreement of February 11, 1913; that the reasonable cost and value of the work as actually performed, on account of the defaults and breaches of the defendant, was actually $29,408.98, whereas, if the materials had arrived within the time and in the condition contemplated and agreed upon, the reasonable cost and value of the said materials would have been approximately $9,000, and that said increases of costs and the damage to plaintiff cannot be measured by attempting to apportion same to the detailed parts of the performance of the work and construction of the said two hulls, for the reason that the work as actually performed cannot be traced to or applied upon the work contemplated, and the condition of the performance of the same is substantially different, and by reason thereof the plaintiff does not claim damages for each several breach within itself, as it is impossible to separate the same and apply it against the total result, because of the difference in the work contracted for and performed, but plaintiff alleges that all of plaintiff's work, even with all of the defaults and breaches on the part of defendant, was performed by the 13th day of November, 1913, and was thereupon accepted by the defendant, the defendant now retains the same and the benefit thereof; that the reasonable worth and value of the work, labor, and materials so furnished by plaintiff to defendant upon said two hulls is the sum of $29,408.98, of which defendant has paid only $8,755, leaving a balance due plaintiff in the sum of $20,623.98, which balance and any part thereof defendant refuses to pay, and said defendant refuses to recognize that this plaintiff has any rights in the premises, other than the rights fixed in the written agreement hereinbefore referred to, and said defendant refuses to consider, with plaintiff, plaintiff's rights in the premises, and defendant renounces and denies plaintiff's rights in the premises."

Defendant filed an answer, which, after admitting a portion and denying a portion of the allegations of the complaint, set up three separate defenses, which may be summarized as follows: First that Wakefield was himself responsible for the excessive and burdensome services performed by him, by his negligence in failing to provide proper tools or skillful employés, and Wakefield had agreed to adjust his differences with the Great Lakes Engineering Works and had so adjusted them; that time was of the essence of the Supple-Wakefield contract, and by Wakefield's negligence in the premises Supple had been subjected to payment of various penalties; second, that the plaintiff, by having prosecuted his original complaint, was barred from prosecuting the amended one; third, that all the work done by plaintiff was done under the original contract of February 11, 1913. Plaintiff filed a reply, denying generally all the allegations in...