State for Use and Ben. of Pegan v. American Sur. Co. of New York

• Decision Date: 22 September 1931
• Citation: 137 Or. 394,2 P.2d 1116
• Parties: STATE, for Use of PEGAN et al., v. AMERICAN SURETY CO. OF NEW YORK et al.
• Court: Oregon Supreme Court

2 P.2d 1116

137 Or. 394

STATE, for Use of PEGAN et al., v. AMERICAN SURETY CO. OF NEW YORK et al.

Supreme Court of Oregon

September 22, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

On defendant appellants' petition for rehearing.

Petition denied.

For original opinion, see 300 P. 511.

Plowden Stott and Collier, Collier & Bernard, all of Portland, William Smith, of Baker, and P.J. Gallagher, of Portland, for appellants.

George F. Alexander and Bartlett Cole, both of Portland, for respondents.

BROWN, J.

The defendants have petitioned this court for a rehearing. For a full statement of the issues of fact and law, see our original opinion decided June 23, 1931, and reported in 300 P. 511.

By their petition the defendants assert that this court erred in holding that the plaintiffs' complaint stated facts sufficient to constitute a cause of action, for the alleged reason that it failed to aver or prove a consideration for the modification of the contract sued upon and that the plaintiffs abandoned their contract.

On the other hand, the plaintiffs contend that the contract was not abandoned by them, but that they entered upon the performance thereof and proceeded therewith until all the work to be performed thereunder was completed, except a few odds and ends which could not be completed at that time because the defendant construction company had not completed the grading. As to the particular work that remained unfinished, we note the following testimony of plaintiff Pegan:

"There were about 5 10-inch culverts, and a few more head walls to be put in; 25 or 30 feet. The rest of the pipes were in there and were all distributed, and the rest of the pipes were in all of the culverts, and the culverts were completed except these five and a few extra head walls, but the head walls could not be put in on account of the grading not being done. I had to quit until Sweeney had done the grading, and so when I wanted to put in the five pipes-I was working on another culvert-I was going to put in the pipes, and Mr. Libby, the engineer in charge, told me not to put them in. *** He said that we would have to put them in after the Sweeney Company got through with the grade, on account of it being a heavy cut. ***

"I couldn't put them (pipes) in or do anything; so I went and I told Sweeney and I said, 'Do you have those five pipes in there? *** What are you going to do about them? Do you want me to leave them with you here so that somebody else can put them in, or what?' *** And he said 'If you have the pipes in there, I will put them in for you,' and he said, 'When I get through with the grading I will charge you the cost of putting them in."'

Witness further testified that Sweeney agreed to complete the unfinished subcontract and charge the plaintiffs "what it cost to do the work," and give them credit therefor.

As stated in our original opinion, the trial court found that there had been no abandonment by the plaintiffs of their contract with the defendant construction company. The plaintiffs alleged, and the court found, in substance, that after the execution of the contract between the plaintiffs and defendant Sweeney Construction Company, the plaintiffs entered upon the performance thereof and proceeded therewith in accordance with all its terms and duly performed all the conditions thereof until on or about November 17, 1926, when all the work to be performed under the contract was completed except putting in two or three pipe culverts and a few odds and ends which could not be done or completed until several weeks or months thereafter, whereupon it was mutually agreed between the plaintiffs and defendant Sweeney Construction Company that the construction company would, and it thereafter did, complete it and charge them for the expense and give them credit for the work to be done and performed by...