Ryan v. Curlew Irrigation & Reservoir Co.
| Decision Date | 16 September 1909 |
| Docket Number | 1995 |
| Citation | 36 Utah 382,104 P. 218 |
| Parties | RYAN v. CURLEW IRRIGATION & RESERVOIR COMPANY |
| Court | Utah Supreme Court |
APPEAL from District Court, First District; Hon. W. W. Maughan Judge.
Action by Edward Ryan against the Curlew Irrigation and Reservoir Company.
Judgment for defendant. Plaintiff appealed.
AFFIRMED.
S. T Corn and A. Howat for appellant.
Fred J Holton and J. D. Call for respondent.
RESPONDENT'S POINTS.
The owner of the real property who has employed another to erect a structure on his land does not, by taking possession and applying the structure to the uses for which it was built preclude himself from insisting that the builder has not properly fulfilled his contract. The results cannot be separated from the necessary consequences of ownership and as he cannot without prejudice to himself reject them or refuse to retain them the law does not imply any promise of his acceptance of them. This being so it matters not whether at the time he is or is not aware of the defects. (Mohry v. Reed, 40 Mo.App. 99; Steret v. Fulton, 31 Mo. 59.) Each material as it is placed in the work becomes annexed to the soil and therefore the property of the owner. As the erection is his by annexation to the soil he may suffer it to stand and there is no rule of law against his using it without prejudicing his rights. (Smith v. Bray, 17 N.Y. 173, 72 Am. Dec. 442; 16 Cyc. 29; Cannon v. Hunt, 113 Ga. 501; Mallard v. Moody, 31 S.E. 45; Wartz v. Metcalf, 23 Ky. L. R. 2189, 66 S.W. 824; Lewis v. Slack, 27 Mo.App. 119; Glacius v. Black, 50 N.Y. 145, 10 Am. Rep. 449; Leverone v. Arancio, 179 Mass. 439; Fitzgerald v. Moran, 141 N.Y. 419; 36 N.E. 508.) The superintendent and company had a right to test the dam and ascertain whether or not it was fit for the purpose for which it was intended. The reservoir and dam site belonged to the company. The fee was in it. It had paid $ 388 more than it should, not counting the 25 per cent it had a right to withhold. Ryan had abandoned the work and refused to return.
On the 20th day of June, 1905, appellant and respondent entered into a contract by the terms of which appellant agreed to construct and complete a certain dam in Box Elder county, Utah, for the respondent. The contract, among other provisions, contained the following:
"The party of the second part [appellant] hereby undertakes and agrees to furnish the necessary labor and materials, including tools, implements and appliances, required, and to build and complete in a workmanlike manner an earthen dam and concrete tunnel across the creek mentioned above for the party of the first part [respondent], in the manner and under the condition and according to the specifications hereinafter set forth, and the plans for said work prepared by the engineer of the party of the first part."
The contract specially provided when the work was to be commenced and when completed; the dimensions of the dam and the manner of its construction, together with the kind and quality of the materials to be used. In short the contract in terms provided what the contractor should do, and how the work should be done in constructing the dam. The contract also provided that payments to the contractor "are to be made on the 20th day of each month upon the report of the superintendent for the party of the first part." In this way seventy-five per cent. of the work done and material furnished by the contractor was to be paid monthly, and the remaining twenty-five per cent. of the contract price was to be paid sixty days after the "final completion of the entire work." "All work to be inspected by the superintendent of the party of the first part, and no payments to be made except with his approval." The contract also contained a special clause upon which appellant lays much stress, and for that reason we shall set it forth in full. It is as follows:
Appellant, in substance, alleged in his complaint that he had completed the dam in accordance with the terms of the contract, and that the same had been inspected by respondent's superintendent, and accepted; that appellant had done certain extra work, and had furnished certain material not included in the original contract, and for which respondent was liable under the terms of the contract, amounting in round numbers to $ 704, and that there was due the appellant the sum of $ 1095.83 as the twenty-five per cent. remaining unpaid on the contract, the whole amount aggregating the sum of $ 1799.83, for which appellant demanded judgment. Respondent in its answer admitted the making of the contract, but denied that appellant had constructed the dam in accordance with its terms, or in accordance with the plans and specifications; denied that the dam had been completed and accepted, and also set forth several affirmative defenses and counterclaims which need not be specially mentioned. The case was tried to a jury, and the court withdrew from their consideration appellant's claim for extra labor and material upon the ground that all the material claimed by appellant was in fact required to be furnished by him under the terms of the contract and as a part of it. The court also withdrew from the consideration of the jury respondent's special counterclaims for damages, and submitted the case to the jury upon the other issues presented by the pleadings. The jury found the issues in favor of respondent, and returned a verdict against the appellant of "no cause of action." The court entered judgment upon the verdict, the effect of which was a dismissal of the complaint, and for costs, against appellant.
Appellant contends that the court erred in its rulings by excluding his claim for extra labor and material. We are of the opinion that the labor and material claimed by appellant as extra were not such, but that both the labor and material claimed as extra clearly came within the terms of the contract as labor and material to be provided by appellant as part of the contract and upon the terms and conditions therein specified. Appellant's contention in this regard, therefore, cannot be sustained.
Appellant further asserts that the court erred in refusing appellant's request to instruct the jury to return a verdict in favor of appellant, for the sum of $ 1095.83, the amount representing the twenty-five per cent claimed to be due him under the contract. This claim is based upon the provision of the contract as construed by appellant, and especially that clause of the contract which provided for a referee in case of disputes. As we construe this clause, it was what is usually termed by the courts a "precautionary stipulation," inserted in the contract for the benefit of the contractee. It is not a stipulation whereby the whole matter as to whether the labor and material were of the kind and quality named in the contract, and whether the work required to be done was to the satisfaction of a certain person agreed upon by the parties. Under such stipulations the courts have frequently held that if the material is accepted by, and the work is done to the satisfaction of, the person named, then the contractee, in the absence of fraud, is estopped from subsequently disputing the fact that the work was completed and accepted in accordance with the stipulations of the contract. Moore v. Kerr, 65 Cal. 519, 4 P. 542, cited by appellant, is a case in which the rule just referred to is illustrated and applied. In that case the contract contained a stipulation that the bridge agreed to be constructed was "to be built under the direction and to the satisfaction of the superintendent appointed by said board [the contractee] in good and workmanlike manner." The trial court found that the bridge had been built and completed to the satisfaction of the superintendent, and that he had accepted the same. The Supreme Court of California accordingly held that, in the absence of any allegation or proof of collusion and fraud between the superintendent and the contractor, the contractor, upon the findings made by the court, was, as a matter of law, entitled to judgment for the unpaid balance of the contract price. In the case of Wright v. Meyer, 25 S.W. 1122, the Court of Civil Appeals of Texas states the rule in the following language:
"The rule is that when the architect is, by the terms on the contract, made the sole arbiter between the parties of matters concerning material and character of work used in construction, the exercise of his judgment on such matters will be binding on the parties, unless some species of fraudulent conduct in respect thereto is pleaded and proved."
The referee clause of the contract in question is, however, not like the one passed on by the Supreme Court of California nor like the one referred to by the Texas Court of...
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