Osten v. Winehill

• Decision Date: 21 December 1894
• Citation: 38 P. 1123,10 Wash. 333
• Parties: OSTEN ET AL. v. WINEHILL ET AL.
• Court: Washington Supreme Court

38 P. 1123

10 Wash. 333

OSTEN ET AL. v. WINEHILL ET AL.

Supreme Court of Washington

December 21, 1894

Appeal from superior court, King county; R. A. Ballinger, Judge.

Action by Anton Osten and another against Gustav Winehill and another. From a judgment for plaintiffs, and an order overruling their motion for a new trial, defendants appeal. Reversed, and nonsuit ordered.

Stratton, Lewis & Gilman, for appellants.

Fishback & Ferry, for respondents.

DUNBAR C.J.

The essential parts of the complaint in this case are that between the 23d day of September, 1890, and the 5th day of November, 1890, the firm of Osten & Co., at the request of appellants, performed work and labor and furnished materials consisting of stonework, brickwork, plastering, and cement for a certain building, the alleged property of the appellants, of the reasonable worth and value of $8,517.55 and an assignment of the claim to the plaintiff's for the sum named. The answer denied the contract alleged; admitted that certain work was done by Osten & Co. for the defendant Gustav Winehill; denied nonpayment, but alleged payment of the whole value of the work done. The defendants alleged as an affirmative defense, that on about the 23d day of September, 1890, the defendant Gustav Winehill entered into a contract with the plaintiffs and Herman Goetz (who constituted the firm of Osten & Co.) whereby the contractors agreed to do all the stone, brick and mason work, plastering cementing, and sidewalk for the building described, in conformity with drawings and specifications made therefor by Charles Hummel, architect, in a good and workmanlike manner and to furnish good, proper, and sufficient materials, of all kinds whatsoever, proper and sufficient for completing and finishing in a substantial and satisfactory manner the said building, and all the outbuildings and appendages connected with the premises, and all other work mentioned in the said plans and specifications, and to complete said work on or before the 15th day of January, 1891, and that thereafter, by agreement of the parties, the time for the completion of the work was extended to the 15th of February, 1891; that all the work referred to in the complaint was done under and by virtue of the said contract, and not otherwise. Defendants attached a copy of the written contract to, and made it a part of, their answer, as Exhibit A. They further alleged that defendant Gustav Winehill performed all the conditions of said contract on his part to be performed, and that he has been at all times ready and willing to comply with the same in every respect, but that the plaintiffs, on about the 20th day of October, 1890, willfully and without cause, abandoned their work under said contract, and neglected and refused, and have ever since neglected and refused, to complete said building as provided in said contract, or to perform the terms and conditions thereof, and claim damages for the breach in the sum of $5,000. The plaintiffs then replied, denying the payments alleged and performance on the part of Winehill, but admitted the making of the contract alleged in defendants' answer, and that the work was done under the contract. And they also alleged that the said contract was in writing, and was made and entered into by defendant Henrietta Winehill; he, the said Gustav Winehill, being then, and at all times in the complaint mentioned, the agent of the community composed of the defendant Gustav Winehill and Henrietta Winehill, by reason of their marriage. The reply further alleged that Osten & Co. had performed all of said contract, except as thereafter stated, and were at all times ready and willing to comply with the same in every respect; then alleged a failure on the part of Gustav Winehill to pay a certain amount due on the contract at a certain time, and that, by reason of said failure and refusal of said Gustav Winehill to keep and perform his said contract, the said Osten & Co. were prevented from fulfilling the further terms and conditions of said contract, and from finishing and rendering complete the performance of the whole of said contract on their part; and alleged that, by reason of the said failure of the defendant to carry out the terms of the contract, plaintiffs elected to treat the same as rescinded and at an end. This matter above referred to is embraced in a second amended reply. Before the reply was filed, defendants objected to the admission of any testimony for the plaintiffs, upon the grounds that under the pleadings it was admitted that the work for which plaintiffs sued was done under a written contract with the defendant Gustav Winehill, that the contract showed a specific price...