Nuttall v. Berntson
| Decision Date | 16 March 1934 |
| Docket Number | 5306 |
| Citation | 30 P.2d 738,83 Utah 535 |
| Court | Utah Supreme Court |
| Parties | NUTTALL v. BERNTSON et al |
Appeal from District Court, Fourth District, Utah County; Le Roy H Cox, Judge.
Action by George M. Nuttall, doing business under the firm name and style of the George M. Nuttall Plumbing Company, against Chris Berntson and another, copartners doing business under the firm name and style of Berntson Bros. From a judgement for plaintiff, defendants appeal.
JUDGMENT REVERSED with directions.
Robinson & Robinson, of Provo, for appellants.
Claude F. Baker, of Eureka, and J. C. Halbersleben, of Provo, for respondent.
This is an action for damages for alleged breach of contract. From a verdict and judgment in favor of plaintiff, defendants appeal. The complaint alleges that on October 2, 1930, plaintiff and defendants made and entered into a contract in writing whereby plaintiff agreed to furnish and install according to plans and specifications all necessary plumbing and heating materials for a state mental hospital building in Provo, Utah, for the sum of $ 30,000; that plaintiff went on the premises at the request of defendants and furnished material and work of the value of $ 153.17; that on or about October 30, 1930, the defendants, without cause and contrary to the provisions of the contract, refused to permit plaintiff to complete the contract; that plaintiff has at all times mentioned been ready and willing and able to perform all of the requirements of the contract, and by reason of the defendants' breach thereof suffered damages in the sum of $ 8,386.
Defendants interposed a general demurrer to the complaint, which was overruling and thereafter answered admitting the signing of the contract set out in the complaint, but denying the other allegations of the complaint. They also alleged affirmatively that they were general contractors with the state of Utah through the state building commission for the construction of the men's ward of the state mental hospital; that, at the time of the signing of the contract alleged, plaintiff and defendants entered into an oral agreement that the pleaded contract or proposal "was to have no force or effect and was not to be binding in any way or manner whatsoever, upon either the defendants or the plaintiff unless and until the plaintiff received the approval of the Utah State Building Commission and of the architect, Joseph Nelson, who was in charge of the construction of the building; and that at said time the plaintiff specifically and definitely agreed with the defendants that he would procure said approval and that unless and until he did procure or receive such approval the contract hereinbefore referred to would have no force or effect and would be regarded by the parties thereto as absolutely null and void; * * * that they signed said proposal or contract only upon and pursuant to said aforesaid understanding and agreement, * * * that except and apart from this oral understanding and contemporaneous agreement they would not have signed said purported contract or proposal; * * * that the signing and delivery of said contract was conditioned and based upon the plaintiff being able to receive" such approval. Defendants further alleged they had done everything required on their part to be performed; that they had submitted plaintiff's name in writing to the state building commission, and requested the commission to approve and ratify their action in selecting plaintiff as such subcontractor, but, notwithstanding this, the state building commission refused to accept plaintiff as a subcontractor on the building, and "this because of no fault or failure on the part of the defendants, but wholly because and on account of the plaintiff." It was further alleged that Laws of Utah 1929, c. 101, vested in the state building commission full power and authority to adopt rules and regulations governing the construction of state buildings, and that one of the requirements adopted by the commission, which was in full force and effect at the time of the making of the contract in question, required that all subcontractors on state buildings be approved by the architect in charge and the state building commission.
The case was tried twice. At the first trial plaintiff moved the court to strike the affirmative allegations of the answer, which motion was granted. At the second trial the court sustained an objection by plaintiff to the introduction of any evidence under the affirmative allegations of defendants' answer. Defendants then made an offer of proof of facts tending to support such affirmative defense. Objection was made to such offer by the plaintiff and by the court sustained. Error is assigned to the striking of the affirmative allegations of defendants' answer and to the sustaining of the objection to the offer of proof. Plaintiff, however, contends that the assignments of error are inadequate because the record does not disclose any motion to strike the affirmative allegations, and plaintiff has based his argument in that respect on the objection to the introduction of evidence. There is some confusion in the record with respect to this matter. It would seem that both parties at the second trial proceeded on the assumption that the answer remained intact, notwithstanding that at the first trial the affirmative allegations thereof had been stricken, and treated the objection to the introduction of evidence as a motion to strike such affirmative allegations. The objection was referred to by plaintiff as a "motion" and, after presentation to the court, the court sustained the "motion." Inasmuch as the allegations were actually stricken as shown by the minutes of the first trial, the defendants precluded from introducing any evidence thereunder at the second trial, and, the objection to the introduction of evidence having been treated as a motion to strike, we think the assignments of error in that respect are sufficient to present for review the correctness of the court's rulings.
Plaintiff further contends that the affirmative allegations in the answer added nothing to the answer not covered by the general denial, and that appellant, therefore, was not prejudiced by the striking thereof, and, further, that the offer of proof was properly refused because it was limited as proof under the affirmative allegations and was not offered under the general issue. Defendants urge, and plaintiff concedes, that the facts set out in the affirmative allegations of the answer would have been provable if competent, under the general issue. 13 C.J. 736. By their answer, however, defendants admitted signing the contract set forth in the complaint, and by their affirmative allegations sought to avoid the effect of such signing. The general issue was not made by this answer. The rule relied on by both parties is therefore not applicable to the pleadings before us. Having admitted the execution of the contract, it was proper for defendants to allege as new matter that the contract had never become effective of binding because of an oral agreement to the effect that it should not become effective until and unless plaintiff was approved as subcontractor by the state building commission, and that such approval was never given. 49 C.J. 294; Eucalyptus Growers Ass'n v. Orange County N. & L. Co., 174 Cal. 330, 163 P. 45; Lord v. Miller, 86 Wash. 436, 150 P. 631; Phillips, Code Pleading, § 238; 1 Bancroft, Code Pleading, § 266.
The affirmative allegations of the answer were stricken, the objection to the introduction of evidence thereunder sustained, and offer of proof rejected, not because of any question with respect to form of pleading or whether the evidence was admissible under affirmative allegations or general issue, but because the trial court took the view that such matters constituted no defense. The court adopted plaintiff's contention that proof of an oral agreement that the written contract should not become effective until approved by the building commission, made prior to or at the time of the execution of the written contract, was...
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