Novelty Mill Co. v. Heinzerling

• Decision Date: 20 July 1905
• Parties: NOVELTY MILL CO. v. HEINZERLING et al.
• Court: Washington Supreme Court

81 P. 742

39 Wash. 244

NOVELTY MILL CO. v. HEINZERLING et al.

Supreme Court of Washington

July 20, 1905

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by the Novelty Mill Company against L. A. Heinzerling and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Andrew J. Balliet and James Kiefer, for appellant.

Charles S. Hill and Allan C. MacDonald, for respondent American Bonding Co. of Baltimore.

Ballinger Ronald & Battle and F. E. Brightman, for respondent L. A Heinzerling.

HADLEY, J.

This is an action upon a contractor's bond. The amended complaint avers that the defendant Heinzerling entered into a written contract to construct for the plaintiff a warehouse in accordance with plans and specifications attached to the contract. The specifications provided that the building should rest upon 45 concrete piers, and the latter were also to be constructed by said defendant. It was provided that, in construction each pier, four piling should be driven to a good foundation, and cut off from one to three feet above ground; the earth to be excavated around the piling one foot below the surface, and a casing built around the same, made of two-inch lumber; the casing having a dimension of five feet by five feet at the base, and three feet by three feet at the top inside. It was also required that the casing should be filled with concrete, made with five parts sand and gravel, and one part good Portland cement; said concrete to be well tamped. The plaintiff alleges that the contractor did not build the piers in accordance with the specifications, in that he failed to use a sufficient quantity of cement, and that he did not use a good quality of Portland cement; that he failed to properly tamp and place the concrete; that he threw the concrete, when mixed, into deep water, so that the cement became separated from the sand and gravel; that, in consequence of such defaults on the part of the contractor the piers are now falling down, and the warehouse is falling by reason thereof, and has become unsafe and useless. It is alleged that the contractor is financially unable to rebuild said piers and make said building such as is contemplated by the contract that he has refused to do so, and that plaintiff will be obliged to reconstruct the same at an expense of $2,500, for which amount judgment is demanded. A supplemental complaint filed since the commencement of the action alleges that the piers have been rebuilt and demands $1,500 damages in addition to the demand in the principal complaint. The defendants answered separately, and each denied that there was any failure to construct the piers in accordance with the contract and specifications. They also each affirmatively averred that during the whole period of the construction the workmanship and the material therein were under the direction, supervision, and approval of the officer or agent of the plaintiff placed in charge of the work by the latter; that at said time the plaintiff informed the contractor that said agent was an expert as to work of that character; that after the completion of the contract the plaintiff withheld payment for 10 days until the work was further wholly inspected and approved by other competent experts selected by the plaintiff; that, having selected such experts, the plaintiff caused the work to be thoroughly examined by them, and they found that the entire work was done strictly in accordance with the plans and specifications; and that thereupon the plaintiff accepted the work. Other affirmative defenses interposed by the surety company we believe it is unnecessary to set out here. The cause was tried before a jury, and a verdict was returned for the defendants. Plaintiff moved for a new trial, and the same was denied. Thereupon judgment was entered for the defendants, and the plaintiff has appealed.

Appellant's counsel asked a witness who it was who drew the specifications for the piers. The respondents objected, and the court sustained the objection. This is assigned as error. It was claimed by the respondents that the tamping of the concrete under water had caused the defect in the piers, and expert witnesses testified to that effect. It was also claimed that the contractor was required by the contract to tamp it, inasmuch as the specifications contained the following: 'Said concrete to be well tamped.' Appellant desired to show that the specifications were drawn by the contractor himself, but we are unable to see that such fact became material, inasmuch as no fraud or overreaching was charged by appellant. The terms of the contract were plain and unambiguous. It is not claimed that appellant did not have ample opportunity to read and understand it before signing, and it is therefore immaterial who drew it.

Error is urged upon the court's rulings in not sustaining objections to the testimony concerning the orders and directions about the work given by the miller, Robertson. It was testified that Robertson was about the work daily; that he gave many directions...