Vanderhoof v. Shell

• Decision Date: 20 April 1903
• Citation: 42 Or. 578,72 P. 126
• Parties: VANDERHOOF v. SHELL. [*]
• Court: Oregon Supreme Court

72 P. 126

42 Or. 578

VANDERHOOF v. SHELL. ^[*]

Supreme Court of Oregon

April 20, 1903

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by G.L. Vanderhoof against L.J. Shell. From a judgment in favor of plaintiff, defendant appeals. Modified.

This is a suit to foreclose a mechanic's lien claimed by reason of defendant's failure to pay plaintiff an alleged balance due upon a completed contract. The contract was entered into March 30, 1901, for the construction and erection of an eight-flat building, by the terms of which plaintiff agreed that he would furnish the materials and labor necessary to complete the masonry, carpenter, and joiner work, plastering, etc., required for the erection of such building; that he would commence the work at once, and carry it forward in strict conformity to the drawings specifications, and general conditions prepared therefor by Richard Martin, Jr., architect, along with the details and instructions given during the progress of the work, so as not to hinder or delay any other contractors in the performance of their contracts, and with such celerity as to insure final completion, acceptance, and occupancy on or before August 1 1901, and that, in case of failure to complete the work by that date, he would pay defendant a sum equal to $7 per day thereafter as damages, to be retained out of any money due and unpaid on the contract, in consideration of the faithful performance of which defendant agreed to pay plaintiff the sum of $10,350.40; payments to be made at the rate of 75 per cent. on value of materials furnished and labor performed, as the work progressed; valuations in all cases to be made by the architect. It was further agreed that plaintiff should on demand, produce and file with the architect receipted bills in full for all materials and labor, and that a failure to do so should be sufficient cause for refusing further payments or to cancel the contract; and it was also provided that in each of the said cases a certificate be obtained, and signed by Richard Martin, Jr., architect, none of which payments, except the final one, should be construed or understood to be an acceptance of any portion of the work contracted for. It was further agreed between the parties that the work should be carried on under the supervision and direction of Richard Martin, Jr., architect, who should have power to stop or reject any work or materials not in accordance with the drawings and specifications; that the defendant or his architect should have power, in case of the failure of plaintiff to rectify errors or to finish the work within the date specified, to cancel the contract, or to employ other parties to finish the work at the cost and expense of the plaintiff; that should the owner at any time during the progress of the building request alterations deviations, omissions from or additions to said contract, he should be at liberty to do so, and such changes should be executed by the plaintiff without in any way violating or vitiating the contract, but the value of such changes should be added to or deducted from (as the case may be) the amount of the original contract price; that, when practicable, the cost of any change should be agreed upon in writing before commencing the same, and no additional time should be allowed for extra work unless agreed upon at the time of making the change; that any dispute respecting the true intent and meaning of the drawings or specifications arising between the parties should be referred to and decided by the architect, whose decision should be final and conclusive, but that any dispute arising in regard to the true value of the extra work or the omitted work should be decided by arbitrators, as therein stipulated; that, where there are different contractors employed on the work, each should be responsible to the other for all damage to work, to persons, or to property or for loss caused by neglect, failure to finish work within proper time, or from any other cause; that any contractor suffering damage should call the attention of the architect or superintendent to the same for action, as indicated; that in case of delay being caused by inclemency of the weather, mechanics' strikes, or by other contractors, and the contractor should require an extension of time for such delay, he should notify the architect thereof, who is authorized to decide the length of time to be allowed, but that no extension of time should invalidate the contract; that, should the work be delayed more than 20 days, the contractor should pay the architect for extra superintendence until the final acceptance of the work, the defendant to be satisfied before paying final certificate that no liens or claims are or can be placed upon the building; and that the final certificate would not be paid until after the expiration of 10 days from date of final acceptance of the building by the owner, or architect, acting for him.

It is alleged in the complaint that the plaintiff performed all the conditions of the contract upon his part, except such as were modified at the instance of the defendant. These modifications or changes are detailed, and their performance shown. It is further alleged that, by reason thereof, plaintiff was unable to complete the building by August 1, 1901; that he applied to the defendant and the architect for an extension of time under the provisions of the contract, which was granted; that he was entitled to an extension equal to the time between August 1st and October 22d on account of such changes, and for the further reason that the defendant's other contractors hindered and delayed him in completing the building within the time specified; that the plaintiff, before the commencement of this suit, and before the filing of the lien, demanded in writing of said architect his final certificate for the sum of money he was entitled to receive, but was refused. The answer, after putting in issue the material allegations touching performance, etc., sets up affirmatively (1) that plaintiff failed to complete the work within the stipulated time, and did not finish same until October 22, 1901, 82 days thereafter, and that his damage for such delay and loss of rentals was at the full rate of the stipulated sum, $7 per day; (2) that plaintiff has suffered a lien to be filed upon said building, contrary to his undertaking; (3) that defendant has paid all certificates given by the architect, and that the building has not yet been accepted, either by the owner or the architect; and, (4) by way of counterclaim, that plaintiff has failed to perform the work as agreed upon, to defendant's damage in the sum of $750. These averments are controverted by the reply, and, the decree being favorable to plaintiff upon the merits of the cause, the defendant appeals.

G.G. Gammans and D.J. Malarkey, for appellant.

A.T. Lewis, for respondent.

WOLVERTON J. (after stating the facts).

The principal questions involved by this controversy are with regard to the maintenance of the suit by plaintiff without having first obtained a certificate from the architect showing the completion of the work in accordance with the contract, and whether plaintiff was entitled to additional time for the completion of the work unless the same was claimed by him and allowed by the architect, and, if so, what amount.

Under the testimony adduced, it clearly appears, by a decided preponderance, that the defendant accepted the work as having been performed in due compliance with the undertaking of the plaintiff. On the 14th of October, plaintiff and defendant, accompanied by the architect and Cline, went through the building, inspecting it carefully for the purpose of ascertaining wherein, if in any respect, the requirements of the specifications had not been observed. A list of the defects was prepared and assented to by all the parties, showing what was yet necessary to be done to render the work acceptable. At the time certain parties wishing to rent portions of the building were ready to move in, and a controversy arose relative to the surrender of the keys by plaintiff, so as to admit of its occupancy by them; he refusing to yield up the keys unless a settlement could be had. This was adjusted, however, by defendant accepting the work, or, as it was then denominated, the building, in all respects, except as to such defects as were noted in the list, whereupon the keys were surrendered and the tenants allowed to move in. There is some dispute among the witnesses in regard to the understanding reached by the parties at the time. The principal inharmony, however, arises from the testimony of defendant, who states that he agreed, "when those things were all remedied--defects in the building"--that he would accept. His architect, however, corroborates the plaintiff and Cline, who testify that defendant then agreed that he would "accept the building up to this list," in consideration of the keys being surrendered. So that we are clear that there was an understanding concluded at the time that defendant accepted the work so far as completed, or the building, with the exception of the minor details mentioned in the list.

Subsequently on October 22d, there was a meeting of the parties at the office of Mr. Martin, the architect, for the express purpose of settling all difficulties between them; Martin, Cline, Finnigan, and Kavanaugh being present. All these persons testify to what was done there, and are practically of one accord--that the list of defects prepared on the 14th was gone over, item by item, to determine whether the contractor had done the work as it was therein specified that he should. As to many of the items, defendant frankly assented that there had been a compliance. As to some he was...