North Pacific Lumbering & Mfg. Co. v. City of East Portland

• Decision Date: 11 October 1886
• Citation: 12 P. 4,14 Or. 3
• Court: Oregon Supreme Court
• Parties: NORTH PAC. LUMBERING & MANUF'G CO. v. CITY OF EAST PORTLAND.

12 P. 4

14 Or. 3

NORTH PAC. LUMBERING & MANUF'G CO. v. CITY OF EAST PORTLAND.

Supreme Court of Oregon

October 11, 1886

S.R. Harrington, H.T. Bingham, C. Taylor, and A.R Coleman, for appellant, City of East Portland.

Williams & Willis, for respondent, North P. Lumbering & Manuf'g Co.

THAYER J.

The respondent is a private corporation, and the appellant a municipal corporation. The former began an action in the lower court against the latter to recover the contract price for building a certain bridge or elevated roadway in said city. The city in the outset contracted with one J.E. Bennett to do the work, and the respondent alleged in its complaint that Bennett, after furnishing materials and performing labor, assigned his claim to the respondent; that the appellant (the city) recognized the respondent as a party to the contract in the place of Bennett, and that thereafter the respondent and appellant, by mutual agreement, so modified the contract that by the terms thereof, as so modified, the respondent was to furnish and put into said roadway, in addition to what had at that time been put into the same four bents, which are described in the complaint; and that upon the completion of the work required by the terms of the contract as so modified, the appellant was to pay the respondent the sum of $5,042 therefor; and further alleged in its complaint that it had duly performed all the conditions on its part to be performed of said contract, as so modified and demanded judgment against said appellant for said sum of $5,042.

The appellant interposed an answer to the complaint, admitting certain formal parts thereof; also that it and one J.E. Bennett entered into a contract, by the terms of which Bennett agreed to furnish the material and perform the labor necessary for building the elevated roadway according to certain plans and specifications; but denied that it agreed to pay said Bennett therefor the sum of $5,042, or any other sum of money, except in accordance with the provisions of a certain ordinance of the city referred to in the answer, under which said Bennett, upon the completion of the work and its approval and acceptance by the common council of the city, was to receive city warrants, for said sum to be raised for the payment of the improvement, upon property abutting upon the street covered by the improvement, which ordinance and agreement are set out in the answer. The appellant denied the assignment to the respondent of his claim, and denied the alleged mutual agreement between respondent and appellant modifying the original contract with Bennett, or that it agreed to pay the respondent, in consideration of any such modification, the sum of $5,042, or other sum; also denied that respondent performed the conditions on its part of the alleged modified contract. The appellant also set out in its answer the proceedings had, under which the contract was awarded to Bennett, which appear to have been in the usual mode in which contracts for the improvement of streets are let in the city of East Portland, under its charter; and also set out the acts it alleged took place between the city authorities and the respondent, claimed by the latter as a modification of the Bennett contract, but which the appellant alleged was no more than an arrangement between the parties to do certain acts which were to operate as a compliance of the terms of that contract, said Bennett having utterly failed to perform it, and, especially, that it was no modification of the original contract, so far as related to the compensation and manner of payment as provided therein; that the common council had not passed upon the improvement, or ascertained whether or not the same had been constructed according to the plans referred to; and that appellant was not in default in the premises.

The respondent filed a reply, controverting many of the allegations in the answer, and alleging matter in avoidance.

The cause was tried by jury, who returned a verdict in favor of respondent, and against the appellant, for the amount claimed, and upon which the judgment appealed from was entered. The appellant made a motion in the circuit court for judgment notwithstanding the verdict, which was denied, and, as there is no bill of exceptions in the record, there is no other question before the court to consider than that raised by said motion.

Two important questions were discussed at the hearing. One of them was whether the action could be maintained against the appellant to recover the contract price for doing the work, in any event; and the other one was whether it could be maintained until the work had been approved and accepted upon the part of the appellant.

The ordinary mode of improving streets in the city of East Portland, under its charter, after the publication of the notice of the intended improvement, is to ascertain and determine the probable cost of the making of the improvement and assess upon each lot, or part thereof, abutting upon the same, its proportionate share of such cost. The board of trustees is then required to declare the same by ordinance, and to direct its clerk to enter a statement thereof in the docket of city...