Porter Const. Co. v. Berry

• Decision Date: 14 April 1931
• Citation: Porter Const. Co. v. Berry, 136 Or. 80, 298 P. 179 (Or. 1931)
• Parties: PORTER CONST. CO. v. BERRY ET AL.
• Court: Oregon Supreme Court

298 P. 179

136 Or. 80

PORTER CONST. CO. v. BERRY ET AL.

Supreme Court of Oregon

April 14, 1931

Department 1.

Appeal from Circuit Court, Klamath County; O. M. Corkins, Judge.

Action by the Porter Construction Company against N.E. Berry, the Oregon Bank & Trust Company, and another. Judgment for plaintiff, and defendants appeal.

Affirmed as to defendant first named, and reversed and rendered as to the other defendants.

The complaint is in the form of four counts. The first of these alleges that in June of 1929 the plaintiff and the defendants agreed that the former should excavate and remove all of the material above street level upon two building sites, owned by the defendants, in the city of Klamath Falls, one at Ninth and Pine streets, and the other at Tenth and Main streets and that the latter should pay plaintiff for its services the sum of 50 cents per cubic yard. It also alleges that, while this work was in progress, the parties effected another contract whereby the defendants employed the plaintiff to excavate below street level upon the same sites, and to pay it therefor the reasonable cost of the work. This cause of action concludes with the allegation that the plaintiff excavated and removed 4,471 cubic yards of material above street level for which the sum of 50 cents per cubic yard, or a total of $2,235.50, became payable, and that it also excavated and removed from the building site at Ninth and Pine streets 3,422 cubic yards from below street level, for which the sum of $1.161 per cubic yard, or a total of $3,975.07, would be reasonable compensation, and that from the building site at Tenth and Main streets it excavated and removed from below street level 2,500 cubic yards, for which $.997 per cubic yard, or a total of $2,492.35, would constitute reasonable compensation. The second count alleges that the plaintiff, at the request of the defendants, removed a quantity of material which had caved into the excavation at Tenth and Main streets, and that reasonable compensation for these services is the sum of $258.83. The third cause of action alleges that the plaintiff, upon defendants' request, excavated a tunnel between the two above-described lots and that in so doing it removed a total of 348.06 cubic yards, for which compensation at the rate of $1.278 per cubic yard, or a total of $574.33, would be reasonable. The fourth count alleges that the plaintiff, upon the defendants' requisition, made a foundation test, cleaned a lot of its débris, trimmed a bank, and set up a pump, for which it should be compensated with the reasonable value of its services, which it alleges to be the sum of $309.97.

The complaint acknowledges receipt of the sum of $6,000, and demands judgment for the balance, $3,846.07.

After the demurrer of the defendant Berry had been overruled, he filed an answer which admitted that the plaintiff had excavated and removed 10,841.6 cubic yards of material from the building sites mentioned in the complaint, but alleged that there should be deducted from that quantity 539 cubic yards as a penalty for unsatisfactory service. The answer also admitted that the parties had agreed that the plaintiff should be compensated at the rate of 50 cents per cubic yard for all materials removed above street level, and that the plaintiff had been paid the sum of $6,000. All other allegations of the complaint were denied, and the answer alleged that the agreement which bound the plaintiff to render its service for a compensation at the rate of 50 cents per cubic yard governed, not only materials removed above the street level, but also all excavations below the street level as well. It also alleged that the parties had agreed to abide by the estimates and computations of materials made by one C C. Kelly, who had been appointed by this defendant as the engineer in charge of the work. Berry's answer concluded with three counterclaims; but, since no mention is made of them upon the appeal, a review of that part of the answer will be omitted.

The defendants Oregon Bank & Trust Company and J. P. Duke filed a joint answer, which denied substantially all of the allegations of the complaint, especially the averments which alleged that they or either of them had hired the plaintiff to perform the work alleged in the complaint.

From a judgment in the sum of $3,846.07 in favor of the plaintiff and against the three defendants, based upon the verdict of a jury, the defendants have appealed.

Harry D. Boivin, of Klamath Falls (Wilson S. Wiley of Klamath Falls, on the brief), for appellants.

Arthur W. Schaupp, of Klamath Falls, for respondent.

ROSSMAN, J. (after stating the facts as above).

The first assignment of error is predicated upon the contention that the circuit court erred when it overruled defendant Berry's demurrer to the complaint which challenged that pleading in the two following particulars: (1) An alleged failure of it to state facts sufficient to constitute a cause of action; (2) an alleged "defect of parties defendant."

In support of the first of these two contentions, Berry argues that all services rendered subsequent to the making of a contract of employment are presumed to be rendered at the contract price, in the absence of evidence to the contrary and that there can be no implied contract where there is an express contract between the parties in reference to the subject-matter. We are willing to subscribe to this principle of the law of contracts, but fail to perceive how its application to the averments which allege the excavations made below street level would be warranted. The complaint alleges that the contract, which the parties effected, bound the plaintiff "to excavate to the Main Street level" only, and that "it was agreed that the excavation should not extend below the level of the street." Further, the complaint alleges that, while the plaintiff was engaged in the performance of that contract the "defendants changed their plans for the construction of the building" in such a manner that "some deep excavation, below the level of the street," was required, the exact nature of which had not yet been determined. The complaint continues:

"When plaintiff was informed that it would be necessary to excavate below street level, he informed defendants that such excavation could not be performed for Fifty cents ($.50) per cubic yard, under his original contract, and defendants N.E. Berry and J. P. Duke informed and instructed plaintiff to proceed with such excavation and the said defendants promised and agreed to compensate plaintiff for such additional work and labor."

These allegations conclude with an averment of the alleged reasonable cost of excavating all materials removed from below the street level lines at both building sites. Such being the complaint, we cannot presume that, when the plaintiff proceeded to remove the additional 5,922 cubic yards from below street level, he did so under the contract which required the removal of above street level materials only at the price of 50 cents per cubic yard. The above allegations warrant no conclusion that the parties amended their contract by including the below street level quantities at the price of the above street level work, but rather charge that plaintiff and defendants effected a second contract covering the subject-matter of below street level excavations. This new or second contract required the plaintiff to perform an additional amount of work of an undetermined quantity, and likewise failed to specify the precise compensation payable to the plaintiff. The complaint alleges that the new agreement was preceded by a declaration that the plaintiff could not render the additional service for 50 cents per cubic yard, and that the defendants agreed to pay "for such additional work and labor"; that is, the reasonable value of the same. The latter allegation does not appear in the words just employed by us, but, had that phraseology been used in the complaint, it would have constituted nothing more than the averment of a conclusion of law. The complaint alleged, however, the reasonable value of all services performed under the second contract. Such being the averments, the objection upon which the first contention of the demurrer was predicated are untenable.

In support of the second contention upon which Berry's demurrer was predicated, that is, an alleged defect of parties defendant, Berry argues "the principal, N.E. Berry, is joined as one of the defendants. * * * J. P. Duke was acting only as agent for N.E. Berry and within the authority of his representative capacity." None of those supposed facts appear upon the face of the complaint, and, since speaking demurrers are unknown to our practice, we must ignore them. Being ignored, the complaint is predicated upon the theory that all three defendants, as joint contractors, made the promises alleged in the complaint, and hence would be jointly liable. Such being the averment, no defect of parties is apparent. Berry seems to believe that the "defect of parties, plaintiff or defendant" mentioned in section 1-605, Oregon Code 1930, means too many. It means too few. State ex rel. v. Hawk, 105 Or. 319, 208 P. 709, 209 P. 607; Wolf v. Eppenstein, 71 Or. 1, 140 P. 751; Tieman v. Sachs, 52 Or. 560, 98 P. 163.

The next assignment of error is based upon the contention that the circuit court erred when it overruled the motion of the defendant J. P. Duke for a nonsuit. As we have seen, the complaint avers that he, together with the other two defendants, engaged the plaintiff's services, and agreed jointly with them to pay therefor; its averments charge an express contract in parol. In order to sustain its recovery the plaintiff relies upon evidence which shows that Duke, who was...