Spokane County v. Pacific Bridge Co.

• Court: Oregon Supreme Court
• Writing for the Court: McCOURT, J.
• Citation: Spokane County v. Pacific Bridge Co., 106 Or. 550, 213 P. 151 (Or. 1923)
• Decision Date: 27 February 1923
• Parties: SPOKANE COUNTY v. PACIFIC BRIDGE CO. ET AL.

213 P. 151

106 Or. 550

SPOKANE COUNTY v. PACIFIC BRIDGE CO. ET AL.

Supreme Court of Oregon

February 27, 1923

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by Spokane County against the Pacific Bridge Company and another. There was a verdict and judgment for plaintiff, and from an order setting the same aside, and granting a new trial, plaintiff appeals. Affirmed.

Wm. C. Meyer, of Spokane, Wash., and Geo. W Gearhart, of Portland (Joseph B. Lindsley, of Spokane, Wash on the brief), for appellant.

Dan. J Malarkey, of Portland (Ralph E. Moody, James E. Fenton, Wm. D. Fenton, McGuirk & Schneider, and Malarkey, Seabrook & Dibble, all of Portland, on the brief), for respondents.

McCOURT J.

The plaintiff, Spokane county, state of Washington, commenced this action against the Pacific Bridge Company, hereinafter referred to as " defendant," and its surety, the United States Fidelity & Guaranty Company, to recover damages in the sum of $61,740, for alleged breaches of a construction contract, whereby defendant undertook and agreed to do all the work and furnish all the materials necessary to construct, improve, and complete about 13 1/2 miles of asphalt macadam pavement upon permanent highway No. 12, known as Palouse Permanent Highway, in Spokane county, Wash., in accordance with, and as described in, the profiles, maps, plans, and specifications made a part of the contract and governing the undertaking and improvement. After the cause was at issue, a protracted trial was had to a jury, which resulted in a verdict in favor of plaintiff for the full amount prayed for in the complaint. A judgment was entered upon the verdict, but thereafter, on motion of the defendants, the verdict and judgment were set aside by the trial court, and a new trial granted. Plaintiff appeals from the last-mentioned order.

Plaintiff insists that no error of law, prejudicial to the rights of the defendants, was committed by the court in the trial of the action, and, inasmuch as there was in the record substantial evidence to support the verdict, the action of the court in setting aside the verdict and judgment and granting a new trial constituted reversible error. The authority of a trial court to set aside a verdict and judgment and grant a new trial is not restricted to the cases indicated in the foregoing statement of plaintiff's contention, but extends to cases where, by reason of some misapplication of the principles of law to which no exception has been taken, or in consequence of some inadvertence to which attention has not been called, the court is satisfied that a party has not had his cause properly presented. Archambeau v. Edmunson, 87 Or. 476, 487, 171 P. 186; Cathcart v. Marshfield, 89 Or. 401, 174 P. 138; Duniway v. Hadley, 91 Or. 343, 346, 178 P. 942; State v. Evans, 98 Or. 214, 221, 192 P. 1062, 193 P. 927; Bottig v. Polsky, 101 Or. 530, 539, 201 P. 188.

The contract out of which this action arose was made and performed in the state of Washington. The improvement was authorized by the statutes of the state of Washington, known as the Permanent Highway Law, which provides for the construction of permanent state highways. 3 Rem. & Bal. Code, § 5879--1 et seq.; 1 Pierce's Code, §§ 6157-6172. The statutes mentioned constituted the county commissioners of the several counties agents of the state to contract directly, and to oversee the work of constructing and improving permanent state highways within their respective counties, in accordance with plans and specifications approved by the state highway commissioner. Provision is made for the payment for such improvements from state funds, and the time and manner of payment is reserved to the state, and payment may be made only upon the certificate of the state highway commissioner to the state auditor. Willapa Harbor Sand & Gravel Co. v. Pacific County, 103 Wash. 309, 174 P. 450; McClung v. King County, 119 Wash. 14, 204 P. 1064.

The contract was entered into on the 14th day of April, 1914. The defendant soon thereafter entered upon the performance of the contract, and on or before the 21st day of October, 1915, defendant claimed and represented that it had fully completed its contract. Thereupon, in conformity with the contract and the Permanent Highway Law, the county engineer and the state highway commissioner examined the improvement, and each certified that the same had been completed in accordance with the plans and specifications. The county commissioners of plaintiff approved the final estimate and certificate of the county engineer, and thereafter final payment was made upon the contract price. Soon after completion, the surface of the road began to break, crumble, and give way in a number of places, and, although plaintiff attempted to repair the road during the summer of 1916, the same continued to break, until in the spring of 1917 the pavement laid by defendant had very largely gone to pieces. Plaintiff then commenced an investigation of the condition of the pavement and the manner in which the same had been constructed, with the result that this action was commenced.

The improvement which defendant undertook to construct included: (1) An asphaltic macadam pavement, full 6 inches in thickness and 16 feet in width, laid upon the roadway in a trench of the full width of the finished pavement, and of the depth below the established and constructed grade equal to the thickness of the finished pavement, and (2) a drainage ditch on each side of the road, the edge of the bank of which should be 18 feet distant from the center of the road. To afford drainage for the subbase upon which the pavement was to be laid, the specifications required that the bottom of the ditch should be 2 feet wide and 2 feet below the grade of the crown of the road, and to provide surface drainage for the highway the specifications required that an earth shoulder, having the same slope as the pavement, should be extended from the pavement on each side for a distance of 4 feet, and thence with a sharper slope to the bank of the drainage ditch. The contract contained the following paragraphs:

Paragraph III: "It is understood and agreed by and between the parties hereto that the work included in this contract is to be done under the direction and supervision of the county engineer and hereinafter called the engineer, and his decision as to the true construction and meaning of the profiles, maps, plans and specifications and estimates shall be final."

Paragraph VII: "Partial payments upon this contract, not to exceed eighty (80) per cent. of the work done, shall be made at the request of the contractor, once each month, said payments to be made upon the estimates of the engineer in charge. * * * Final payment for said work shall be made within thirty (30) days after the entire work has been completed and accepted and certificate has been made by the engineer and the state highway commissioner that such work has been fully completed in accordance with the contract and profiles, maps, plans and specifications. * * *"

Paragraph X. "The contractor shall provide sufficient safe and proper facilities at all times for the inspection of the work by the board or its authorized representatives. * * * All materials and methods shall be subject to the approval of the engineer. Defective work or material may be condemned by the engineer at any time before the final acceptance of the work. Notice of condemnation shall be given in writing by the engineer, and such condemned work shall be immediately taken down or changed. Defective material shall be immediately removed or disposed of to the satisfaction of the engineer. Failure or neglect on the part of the engineer to condemn unsatisfactory material or to reject inferior workmanship shall in no way release the contractor, nor shall it be construed to mean the acceptance of such work, nor shall the final acceptance bar the county of Spokane from recovering damages in case fraud was practiced."

Paragraph XI: "It is further mutually agreed between the parties hereto that no certificate given or payment made under this contract, except the final certificate or final payment, shall be evidence of the performance of this contract either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials which may appear within two (2) years after such payments."

Paragraph XII: "The work and material covered by this contract shall be at the sole risk of the contractor until the same shall have been finally accepted by the engineer, board and state highway commissioner. * * *"

Plaintiff in its complaint specified and enumerated many details of improper and defective materials and workmanship alleged to have been used and employed by defendant in constructing the pavement, with the result that the pavement constructed by defendant was inferior to, and of much less value than, that which defendant contracted to build, and that by reason of such departures from the requirements of the contract, and the failure of defendant to construct drainage ditches, presently mentioned, as required by the contract, the pavement to a large extent prematurely crumbled and gave way, to plaintiff's damage in the sum of $50,418. None of the defects mentioned, due to defective material or improper workmanship, was apparent upon an examination of the finished pavement.

Plaintiff further alleged in its complaint that, for at least one-half of the entire length of the highway, defendant did not excavate any drainage ditches, and that, where such ditches were excavated, defendant left therein all the way from 10 feet to 1.35 feet of material, which must be excavated in order to make said ditches to conform to the...