Schmidt v. City of North Yakima

CourtUnited States State Supreme Court of Washington
Writing for the CourtDUNBAR, J.
Citation40 P. 790,12 Wash. 121
PartiesSCHMIDT v. CITY OF NORTH YAKIMA.
Decision Date19 June 1895

40 P. 790

12 Wash. 121

SCHMIDT
v.
CITY OF NORTH YAKIMA.

Supreme Court of Washington

June 19, 1895


Appeal from superior court, Yakima county; Carroll B. Graves, Judge.

Action by Richard Schmidt against the city of North Yakima on a contract for the price of work and materials. From a judgment for defendant, plaintiff appeals. Affirmed.

[12 Wash. 122] F. H. Rudkin, H. J. Snively, and J. T. Ronald, for appellant.

Whitson & Parker and Reavis & Englehart, for respondent.

DUNBAR, J.

The appellant entered into a written contract with respondent for the construction of a system of sewerage in the city of North Yakima. Contract and specifications are set forth in the pleadings. The work was to be done to the satisfaction of [12 Wash. 123] and under the direction of the city engineer, and to be testified by his certificate. Under the contract, in case the contractor, at any time during the progress of the work, refused or neglected to supply a sufficiency of material, workmen, or implements to complete the system within the time, the city reserved the right to provide the same, after five days' notice in writing first being given the contractor, to finish the work, and the expense to be deducted from the amount of the contract price. The contractor was to provide, at his own costs and charges, all manner of material, labor, and implements of every description for the due performance of the contract. It was further provided that, should any dispute arise respecting the construction or meaning of the drawings or specifications, the same should be decided by the city engineer of the party of the first part, which decision should be final and conclusive. The contract was to be completed according to the specifications on or before the 1st day of June, 1892. The specifications required that the pipe should be of the best quality of vitrified ironstone, salt-glazed; that it should have a true circular bore, should be straight, and free from warps or other imperfections; also, that the material used around the pipe for not less than 12 inches above the pipe should be [40 P. 791] free from stone or other hard, coarse substance; that, where the excavation was through coal or gravel, the material used around the pipe should be screened through a sieve, and such as the engineer might approve of, each joint to be well and thoroughly cemented with best Portland cement one part, and two parts clean, sharp sand. They provide that the cement should be put in the joints by the hands, and not by trowels or sticks; that great care should be taken not to force the [12 Wash. 124] cement through the joints to the inside of the pipe. The specifications were lengthy and definite. During the fore part of the month of June, the city council of the city of North Yakima passed an ordinance provided for in the contract, that they would take charge of the work, and did take charge of the same, and finish the same; whereupon the contractor (the appellant herein) brought an action against the city for damages, alleging the making, execution, and delivery of the contract; that, under the contract, he entered upon the construction of the said sewerage system, and provided necessary, suitable, and sufficient material for the construction of the same, and was proceeding to complete the same, until he was interfered with and stopped by the respondent; that, in undertaking to carry out the contract, he incurred a large expenditure, to wit, the sum of $30,372; that he would have fully completed said system in accordance with said contract, plans, specifications, and drawings at a further expenditure of not more than $4,000; but that the defendant, by its officers and servants, hindered, delayed, and prevented the complete performance of said contract by sundry wrongful acts, setting them forth specifically.

Among the facts which were necessary to the determination of the questions involved in this cause, the most pertinent ones were that the defendant, by its city engineer and others, wrongfully rejected large quantities of the pipe furnished by the plaintiff, and refused to permit the plaintiff to lay or use the same, notwithstanding all such pipe fully complied with the contract and specifications; that the defendant, by its officers, on sundry occasions capriciously refused to allow the use by the plaintiff of suitable materials, and, after causing said delay, allowed the same materials[12 Wash. 125] to be used, and approved the same, and capriciously interfered with the plaintiff's labors on said work; that on or about the 16th day of June, 1892, the defendant, by its officers, wrongfully and forcibly prohibited and prevented the plaintiff from further working on said contract; that plaintiff has fully performed all the conditions of said contract, except in so far as he has been prevented by the wrongful acts on the part of the defendant; and that, by such reason, he is damaged in the sum of $10,000, and alleges damages for extra work, etc., which swell the amount claimed to $29,918.33, for which sum he asks judgment.

The defendant, by its answer, admits the making of the contract, payment mentioned by the plaintiff in his complaint, and admits extra work done by the plaintiff to the amount of $824, and admits the presentation to and the disallowance of the plaintiff's claim by the city council, but denies each and every other allegation of the complaint; and for an affirmative defense, and by way of counterclaim, alleges that plaintiff failed and refused to comply with the terms of the contract to complete such work according to the plans and specifications in many particulars, among which were that he did not properly cement the joints of the pipe, that they were laid in a defective manner, so that they leaked, and rendered the sewer system liable to generate gas, which was liable to cause explosions, etc., by which the defendant claimed to be damaged in the sum of $2,000; alleges that the plaintiff did not furnish the quality of pipe provided for by the specifications; that the same was not the best quality, not properly vitrified, not salt-glazed, and was not of true circular bore and free from warps, but was wholly unfit for the work, and that, by reason of such failure on the [12 Wash. 126] part of the plaintiff, defendant was damaged in the sum of $10,000; alleges that the plaintiff failed and refused to employ skilled mechanics to lay such pipe, to the damage of defendant in the sum of $500. and, among other failures on the part of the plaintiff to comply with the terms of the contract as alleged, that, during all the time that plaintiff was carrying on said work, he was fraudulently contriving to and did put in defective pipe, which had been rejected by the city engineer, which was unfit for said work, and not according to the plans and...

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21 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Michaelis v. Wolf, 136 Ill. 68; Mundy v. L. & N. R. Co., 67 F. 633; Hardware Co. v. Berghoefer, 103 Wis. 359; Schmidt v. North Yakima, 12 Wash. 121; Smith v. Brady, 17 N.Y. 173; Vincent v. Stiles, 77 Ill.App. 200; Wendt v. Voegel, 87 Wis. 462; Pope v. King, 16 L. R. A. (N. S.) 489.) The pla......
  • Golob v. George S. May Intern. Co., No. 99--40501--1
    • United States
    • Court of Appeals of Washington
    • April 27, 1970
    ...ed. 1937). 12 Restatement of Contracts § 349, Comment subsection (1)a (1932). 13 See note 11 Supra. 14 Schmidt v. City of North Yakima, 12 Wash. 121, 40 P. 790 (1895); see Continental Coal Co. v. United Fuel Co., 176 Wash. 271, 29 P.2d 395 (1935); Restatement of Contracts § 357(1)(a) (1932)......
  • Berry v. Huntington Masonic Temple Ass'n, (No. 3203.)
    • United States
    • Supreme Court of West Virginia
    • May 1, 1917
    ...Stone Co. v. New York, 160 N. Y. 72, 54 N. E. 661; Happel v. Marasco Co., 37 Misc. Rep. 314, 75 N. Y. Supp. 461; Schmidt v. North Yakima, 12 Wash. 121, 40 Pac. 790. Recovery was refused in Ashley v. Henahan, 56 Ohio St. 559, 47 N. E. 573, for lack of a certificate, but Minshall, J., said: "......
  • Ducolon Mechanical, Inc. v. Shinstine/Forness, Inc., No. 16335-7-II
    • United States
    • Court of Appeals of Washington
    • May 1, 1995
    ...law a plaintiff who willfully breached a contract could not recover restitution of his or her part performance. Schmidt v. North Yakima, 12 Wash. 121, 40 P. 790 (1895) (contractor who willfully and fraudulently refuses to comply with contract cannot recover); Swenson v. Lowe, 5 Wash.App. 18......
  • Request a trial to view additional results
21 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Michaelis v. Wolf, 136 Ill. 68; Mundy v. L. & N. R. Co., 67 F. 633; Hardware Co. v. Berghoefer, 103 Wis. 359; Schmidt v. North Yakima, 12 Wash. 121; Smith v. Brady, 17 N.Y. 173; Vincent v. Stiles, 77 Ill.App. 200; Wendt v. Voegel, 87 Wis. 462; Pope v. King, 16 L. R. A. (N. S.) 489.) The pla......
  • Golob v. George S. May Intern. Co., No. 99--40501--1
    • United States
    • Court of Appeals of Washington
    • April 27, 1970
    ...ed. 1937). 12 Restatement of Contracts § 349, Comment subsection (1)a (1932). 13 See note 11 Supra. 14 Schmidt v. City of North Yakima, 12 Wash. 121, 40 P. 790 (1895); see Continental Coal Co. v. United Fuel Co., 176 Wash. 271, 29 P.2d 395 (1935); Restatement of Contracts § 357(1)(a) (1932)......
  • Berry v. Huntington Masonic Temple Ass'n, (No. 3203.)
    • United States
    • Supreme Court of West Virginia
    • May 1, 1917
    ...Stone Co. v. New York, 160 N. Y. 72, 54 N. E. 661; Happel v. Marasco Co., 37 Misc. Rep. 314, 75 N. Y. Supp. 461; Schmidt v. North Yakima, 12 Wash. 121, 40 Pac. 790. Recovery was refused in Ashley v. Henahan, 56 Ohio St. 559, 47 N. E. 573, for lack of a certificate, but Minshall, J., said: "......
  • Ducolon Mechanical, Inc. v. Shinstine/Forness, Inc., No. 16335-7-II
    • United States
    • Court of Appeals of Washington
    • May 1, 1995
    ...law a plaintiff who willfully breached a contract could not recover restitution of his or her part performance. Schmidt v. North Yakima, 12 Wash. 121, 40 P. 790 (1895) (contractor who willfully and fraudulently refuses to comply with contract cannot recover); Swenson v. Lowe, 5 Wash.App. 18......
  • Request a trial to view additional results

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