Patent Scaffolding Co. v. Roosevelt Apartments, Inc.

• Decision Date: 30 January 1933
• Docket Number: 24148.
• Citation: Patent Scaffolding Co. v. Roosevelt Apartments, Inc., 171 Wash. 507, 18 P.2d 857 (Wash. 1933)
• Parties: PATENT SCAFFOLDING CO. v. ROOSEVELT APARTMENTS, Inc.
• Court: Washington Supreme Court

18 P.2d 857

171 Wash. 507

PATENT SCAFFOLDING CO. v. ROOSEVELT APARTMENTS, Inc.

No. 24148.

Supreme Court of Washington

January 30, 1933

Department 2.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by the Patent Scaffolding Company against the Roosevelt Apartments, Incorporated.Judgment for plaintiff, and defendant appeals.

Affirmed.

Hamblen & Gilbert and Robert Weinstein, all of Spokane, for appellant.

Fred S Duggan, of Spokane, for respondent.

MAIN J.

In the complaint in this action, there are eleven causes of action separately stated.The first is for the rental of patentedscaffolding machines which were used in the construction of a building.The other causes of action are upon assigned claims for material which went into the construction of the building.The cause was tried to the court, without a jury, and resulted in findings of fact from which the court concluded that a recovery could be had upon each cause of action.Judgment was entered against the defendant for the sum of $3,121.25, from which it appeals.

The facts may be summarized as follows: The appellant, Roosevelt Apartments, Inc., was a corporation which was the owner and builder of an apartment house in the city of Spokane, known as the Roosevelt Apartments, and one Harry Lubin was its president and managing officer.The Huetter Construction Company was a corporation which was engaged in the contracting business, with its principal place of business in the city of Spokane.The respondent, Patent Scaffolding Company, was a corporation organized under the laws of the state of California, and authorized to do business in this state.

January 21, 1929, the Roosevelt Apartments, Inc., entered into a written contract with the Huetter Construction Company for the erection of an apartment building, known as the Roosevelt Apartments.By the terms of this agreement, the Roosevelt Apartments agreed to pay the contractor for its services a fee of $10,000, upon the condition that the net cost of the construction of the building, including the fee, did not exceed a total of $223,534.In the event the net cost, plus the fee, should be less than the sum mentioned, the construction company was to receive, in addition to the above-named fee, one-third of all savings made from such stipulated upset cost.The Roosevelt Apartments was to receive the other two-thirds of such saving.

The fee mentioned was to be in full payment for the services of the construction company.In the agreement, the construction company was designated as the contractor, and the Roosevelt Apartments as the owner.The contract covers approximately ten type-written pages, and is too long to be here set out in full.The contractor entered upon the performance of the work, and on May 15, 1929, entered into a contract with the respondent, Patent Scaffolding Company, for the rental and use of its patented scaffolding machines in the construction of the building.This contract was submitted to the architect and approved by him in writing.By the contract, the respondent was to receive $2.50 per week for each machine.The use of the machines was completed prior to September 1, 1929, and no payment has been made for the use thereof.

As stated, the other causes of action are for material which went into the construction of the building.All the contracts upon which recover is sought in this action against the Roosevelt Apartments were signed by the Huetter Construction Company, and not by the owner.The trial court expressly found that during the construction of the building neither the respondent nor any of its assignors had any knowledge of the conditions and terms contained in the agreement between the Roosevelt Apartments and the contractor, and did not learn of such conditions until the summer of 1931.The cost of the construction of the building considerably exceeded the stipulated upset cost thereof, and the construction company did not receive and fee or compensation for its services and became insolvent.

The first question is whether by the terms of the contract the relation of principal and agent between the contractor and the owner existed, or whether the construction company was an independent contractor.This court has many times stated the rule which marks the dividing line between the terms of a contract which will create...