Plumbing Shop, Inc. v. Pitts

• Decision Date: 02 December 1965
• Docket Number: No. 37594,37594
• Court: Washington Supreme Court
• Parties: The PLUMBING SHOP, INC., Appellant, v. Guy A. PITTS and Mrs. Guy A. Pitts, husband and wife, Respondents.

Page 514

67 Wn.2d 514

408 P.2d 382

The PLUMBING SHOP, INC., Appellant, v. Guy A. PITTS and Mrs. Guy A. Pitts, husband and wife, Respondents.

No. 37594.

Supreme Court of Washington, Department 2.

Dec. 2, 1965.

Howard H. Herman and Robert J. McKanna, Spokane, for appellant.

Murphy & Merryman, Thomas E. Merryman, Spokane, for respondents.

FINLEY, Judge.

Two aspects of contract law are involved in this appeal: (1) The legal implications, if any, arising from the use of a subcontractor's bid-offer by a general contractor in the submission of an over-all bid, and (2) the role of custom and usage in the proof of implied contracts.

The salient facts of this controversy are as follows: The plaintiff, The Plumbing Shop, Inc., a mechanical subcontracting firm, commenced this action for damages for breach of an alleged implied contract with Guy A. Pitts and Mrs. Guy A. Pitts, husband and wife, as general contractors. The plaintiff subcontractor submitted a bid to the defendant general contractor on June 21, 1963, in the amount of $62,000 for the mechanical work to be done on the government project known as the Priest Lake Ranger Station. The bid was submitted in several sections, inasmuch as the government had not yet determined what portion of the project should be completed during the fiscal year. The 'June 21, 1963' bid was confirmed by the plaintiff in a telephone conversation with the defendants on June 23, 1963. The various general contractors' bids were opened on June 24, 1963, and it was determined that the defendant was the low general bidder.

On June 28, 1963, the defendant telephoned the plaintiff and indicated to him that the government was going to award him the general contract for the Priest Lake Ranger Station. In addition, the defendant requested the plaintiff to prepare for him a cost breakdown and also to order submittal for the job. On July 2, 1963, the defendant general contractor came to the plaintiff's office to discuss pertinent data with respect to prosecution of the mechanical portion of the work. Later that evening, the defendant requested plaintiff's prepared cost breakdown for the mechanical aspects of the project. Subsequently, the plaintiff testified that he turned over his cost breakdown only because he was under the impression that he and the defendant had effected a contractual relationship for the mechanical portion of the Priest Lake Ranger Station project. The defendant thereafter refused to enter into a written contract with the plaintiff to that effect. Plaintiff brought this lawsuit for damages in the amount of $3,486.03, alleging that this sum represented the profit expected, or realizable, had not the defendant breached the contract.

At the conclusion of plaintiff's case, the defendant moved for nonsuit. The trial court granted the motion and entered an order of dismissal. This, principally, was on the theory that the alleged implied contract lacked the legally requisite specificity of terms--and additionally, on the ground that the parties had contemplated the execution of a written agreement.

In our review of the trial court's action, we must view the plaintiff's evidence and all reasonable inferences therefrom in the perspective most favorable to the plaintiff. O'Brien v. Schultz, 45 Wash.2d 769, 278 P.2d 322 (1954). However, construing plaintiff's evidence in this manner, we nevertheless conclude that the plaintiff's case provided no basis upon which a jury could reasonably find for the plaintiff.

The plaintiff here seeks to prove an Implied contract. ¹ In other words, he is simply seeking to prove or to imply a promise or set of promises from an act or series of acts on the part of the defendant. We know of no better definition of the term 'promise' than the one given in § 2(1) of the Restatement, Contracts (1932):

A promise is an undertaking, however expressed, either that something shall happen, or that something shall not happen, in the future.

The Washington court has long adhered to the objective manifestation theory in construing the words and acts of alleged contractual parties. We impute to a person an intention corresponding to the reasonable meaning of his words and acts. Unexpressed intentions are nugatory when the problem is to ascertain the legal relations, if any, between two parties. Washington Shoe Mfg. Co. v. Duke, 126 Wash. 510, 218 P. 232, 37 A.L.R. 611 (1923).

An implied contract, then, has no distinction from an express or written contract in terms of its legal consequences. It simply differs in the mode of its proof. Milone and Tucci, Inc. v. Bona Fide Builders, Inc., 49 Wash.2d 363, 301 P.2d 759 (1956). In the instant case, we have an express offer in the form of an undertaking by the plaintiff 'would-be subcontractor' to perform the mechanical portion of the Priest Lake Ranger Station project at a price of $62,000. The issue is whether the conduct of the defendant, reasonably construed, manifested an intent indicative of acceptance of the plaintiff's bid-offer.

The facts emphasized by the plaintiff-appellant in this regard are: (1) the defendant's telephoning the plaintiff on June 28, 1963, informing him of the general contract award, and (2) the defendant's request for cost breakdown and the ordering of submittal. The plaintiff testified that he would not have prepared the cost breakdown, nor would he have ordered the submittal, if he had not been convinced that he and the defendant had entered into a contract for that portion of the Priest Lake job. In addition, the plaintiff introduced expert testimony to the effect that the applicable custom and usage of trade indicated that general contractors and subcontractors would regard themselves as contractually bound under similar circumstances. Can it reasonably be said that the defendant, by his conduct, had accepted the bid-offer of the plaintiff when he requested, and received, the cost breakdown?

We think not. The plaintiff undertook little or no expense in preparing the cost breakdown, which was nothing more than a written verification of his original bid. The plaintiff had previously submitted similar documents to several general contractors prior to the awarding of the general contract. Furthermore, the ordering of submittal is not necessarily a binding order of materials. In the instant case it appears to have been merely a request to manufacturers to forward brochures containing information and specifications respecting items and materials to be utilized in the construction process. Such procedure normally involves no expense to the firm requesting the information, such as the plaintiff-appellant herein.

More importantly, the record before us is devoid of any evidence of agreement, express or otherwise, to any term of the alleged contract other than the price. Such essentials, as manner of payment, time for completion of the mechanical portion of the work, penalty provisions, bonding, etc., are normally critical to any construction contract. The plaintiff-appellant argues that substantial agreement had been reached on the essential terms, and with respect to such 'housekeeping' items, as time of performance, the law will imply a reasonable time, citing Stanton v. Dennis, 64 Wash. 85, 116 P. 650 (1911). But our role is not that of contract maker; we merely give legal effect to bargained-for contractual relations. Any prudent General contractor, with the attendant responsibility for coordinating all aspects of a project in order to meet the quality and time requirements of the general contract, probably would require a substantial degree of supecificity with respect to time of completion of various portions of the mechanical work in order to insure the overall progress of the project. For that matter, good business practice would dictate that prudent subcontractors (whatever their undertaking) should insist upon precise terms indicating the...