Pippy v. Winslow

• Decision Date: 09 July 1912
• Citation: 125 P. 298,62 Or. 219
• Parties: PIPPY et al. v. WINSLOW.
• Court: Oregon Supreme Court

125 P. 298

62 Or. 219

PIPPY et al. v. WINSLOW.

Supreme Court of Oregon

July 9, 1912

Appeal from Circuit Court, Multnomah County; W.N. Gatens, Judge.

Action to foreclose a mechanic's lien by T.A. Pippy and another against J.S. Winslow. From a decree for plaintiffs, defendant appeals. Affirmed.

On July 1, 1909, plaintiffs, as partners, entered into a written contract with defendant for the construction of a four-flat building on the northwest corner of Washington and East Nineteenth streets, Portland, Or. The contractors were to furnish all the materials and perform all the work necessary for a full completion of the building, both the work and material to be the best of their respective kinds. The work was to be done under the direction of the architect, W.F Tobey. By the contract it was understood that such additional drawings and explanations as might be necessary to detail and illustrate the work, were to be furnished by the architect so far as they might be consistent with the purpose and intent of the original drawings and specifications. In case the owner and contractors should not agree as to the amount to be paid or allowed for any alterations that might be made the work should go on and the matter be referred to arbitration. Should the contractors fail in the performance of the agreement, the same having been certified to by the architect, the owner should be at liberty to provide such labor or materials as the contract called for, deducting the cost thereof from any money due the contractors. Upon a certificate from the architect, 80 per cent. of the labor performed, and material on the ground, should be paid for from time to time as the work progressed, final payment to be made within thirty days after the completion. A payment of $3,000 on the contract was made by Mr. Winslow.

J.O Stearns, of Portland, for appellant.

Lewis & Lewis, of Portland, for respondents.

BEAN J. (after stating the facts as above).

The contract contains 12 articles and refers to 151 specifications which are made a part thereof. These specifications were prepared in the city of San Francisco by J.E. Kafft, architect. As the material manufactured in Portland differed in style and size from that in the former city where the plans were drawn, changes therein were necessitated. Therefore 27 alterations were agreed upon and attached as addenda to the specifications. Afterwards numerous other alterations in the building were agreed to. Some were made by the contractors and approved by the owner and his architect. In regard to others there is contention. In fact, the plans were changed to such an extent that they became of little value as a guide in the performance of the work. To begin with, they were something like a ready-made suit of clothes which does not fit. The owner of the building was an old, experienced contractor and carpenter and understood that part of the construction. No doubt he could express orally what he desired, better than in writing. In discussing the changes, as the work progressed, there were sometimes misunderstandings as to what the owner directed. The record contains 860 pages of typewritten testimony and 43 exhibits. Apparently the circuit court heard the testimony with very careful attention. Experts were called, who examined the building and enlightened the court with their knowledge and experience. After a hearing of some length, the court allowed $252.90 of the $412.40 claimed, for extra labor and materials, deducted the sum of $189.20 for defective work and materials, and rendered a decree in favor of plaintiffs for $5,406.70 with interest, $250 attorney's fees, and $1.60 for recording the lien. The defendant claims that he was damaged in the sum of $3,919.15 on account of the defects and failure to construct the building according to the contract, and furthermore that plaintiffs are not entitled to a lien.

The voluminous record and the many items in dispute render it impracticable to refer in detail to each matter. The controversy reminds us of a case involving domestic difficulties. About the last of August, when the building was advanced as far as the plastering, the contractors and the owner quarreled in regard to the construction of the front porch columns. Since that time the difficulties and differences have apparently increased. We approach the solution of this difficult question having in mind the following general rules.

The substantial performance of a contract like the one in question permits only such omissions and deviations as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, can be conveniently remedied, and may, without injustice, be paid for by deductions from the contract price.

Where the contractor fails to perform a considerable part of the work required by the contract, his failure, irrespective of whether his intentions were good or bad, constitutes a bar to his enforcement of a lien for the work performed. If the defects show that the contractor performed the work in a slovenly and improper manner, not conforming substantially with the plans and specifications and thereby defeating the intentions of the parties to have the work done in a particular manner, the contractor, unless there has been a waiver, cannot enforce a lien. The willful omission, though in an unimportant respect, will preclude the assertion of a lien by him. The spirit of the contract should be faithfully observed, though the letter thereof fail. 20 Amer. & Eng.Enc. of Law (2d Ed.) 367; Glacius v. Black, 50 N.Y. 145, 10 Am.Rep. 449; Anderson v. Petereit, 86 Hun, 600, 33 N.Y.Supp. 741; Perry v. Quackenbush, 105 Cal. 299, 38 P. 740.

In a suit by a contractor to enforce a mechanic's lien, the burden of proof is upon him to show a substantial compliance with the contract, as modified and changed from time to time. Adams v. MacKenzie, 59 Or. 89, 114 P. 460.

A court of equity, in...