W.D. Miller Const. Co. v. Donald M. Drake Co.

• Decision Date: 13 April 1960
• Citation: 351 P.2d 41,221 Or. 249
• Parties: W. D. MILLER CONSTRUCTION CO., a corporation, Respondent, v. DONALD M. DRAKE COMPANY, a corporation, Appellant.
• Court: Oregon Supreme Court

Page 41

351 P.2d 41

221 Or. 249

W. D. MILLER CONSTRUCTION CO., a corporation, Respondent, v. DONALD M. DRAKE COMPANY, a corporation, Appellant.

Supreme Court of Oregon, Department 1.

Argued Jan. 7, 1960.

Decided April 13, 1960.

Marshall C. Cheney, Jr., Portland, argued the cause for appellant. With him on the brief were Koerner, Young, McColloch & Dezendorf, Portland.

R. B. Maxwell, Klamath Falls, argued the cause for the respondent. With him on the brief was H. F. Smith, Klamath Falls.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and HARRIS, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, Donald M. Drake Company, a corporation, from a judgment in the sum of $13,638.92 which the circuit court entered in favor of the plaintiff, W. D. Miller Construction Co., also a corporation. The case was tried without a jury and the judgment is based upon findings of fact and conclusions of law. The plaintiff maintains a plant in Klamath Falls from which it furnishes transit-mixed concrete to contractors. The defendant, on June 22, 1955, entered into two contracts with the United States Navy whereby it bound itself to build several buildings at the Klamath Falls air base. Construction of the floors, foundations and other parts of the buildings required the use of transit-mixed concrete. July 12, 1955, the plaintiff and the defendant entered into a contract whereby the plaintiff agreed to deliver to the defendant transit-mixed concrete of the quality specified in the contract between the defendant and the Navy for the work just mentioned. According to the plaintiff, it supplied to the defendant in the period of July 15, 1955, to November 19, 1956, transit-mixed concrete of the required kind and of the value of $66,170.20. It alleged that of that sum $13,638.92 remained unpaid when this action was filed. The defendant not only denied that it was indebted to the plaintiff, but submitted a counterclaim in the sum of $35,515.46 which was based upon averments that the concrete which the plaintiff delivered to the defendant did not meet the terms of the agreement between plaintiff and defendant. The counterclaim also alleged:

'By reason of plaintiff's said breach of its subcontract, the performance of said prime contracts by defendant was stopped by order of the United States Navy from September 3, 1955 until October 11, 1955, and defendant sustained damages from said delay and from additional costs and expenses incurred by reason of the said breach and resulting contract changes in a total amount of $35,515.46.'

The circuit court denied the defendant's prayer for judgment upon its counterclaim and, as we have said, awarded the plaintiff judgment in the sum of $13,638.92.

The contract between the plaintiff and the defendant bound the former to deliver to the defendant transit-mixed concrete which would meet the demands of a specification written by the United States Navy known as Bureau of Yards and Docks Specification No. 13 Yd and of another known as Federal Specification SS-A-281.

In appealing, the defendant submits eight assignments of error. We will now consider them.

The first assignment of error reads as follows:

'The court erred in denying Appellant's motion for dismissal.'

The motion for dismissal, as expressed by the defendant's counsel in the trial court, gave as its basis the following reason:

'* * * Plaintiff has introduced in evidence, as a part of it's case, the purchase orders which are involved here which require Plaintiff to supply concrete meeting the contract and the specifications; that there is no proof, no evidence offered by Plaintiff to show that any of the concrete which it supplied met the specifications. Hence, Plaintiff is not entitled to recover. There is a failure of proof, and its complaint should be dismissed.'

The second assignment of error asserts that the circuit court erred when it overruled the defendant's objections to some questions which plaintiff's counsel propounded to Mr. W. D. Miller, the president of the plaintiff corporation. The objections urged that the questions called for expert opinion evidence and that Mr. Miller had not qualified as an expert.

Since the second assignment of error challenges the admissibility of evidence which the circuit court took into account when it denied the defendant's motion for a dismissal, we will resolve the second assignment of error before giving attention to the first.

One of the questions which was propounded to Mr. Miller and to which the defendant objected reads as follows:

'Mr. Miller, to the best of your knowledge did any of the concrete delivered by your Company to the Drake Company, other than the amounts delivered in this 3-day period, fail to test satisfactorily?'

After the objection had been overruled the witness answered:

'A. No, the rest of the concrete, there was no question about it.'

Having given that answer Miller was asked:

'On the basis of that, Mr. Miller, will you tell us whether the concrete delivered to the Drake Company under these purchase orders were mixed in accordance with the Specifications 13 YD, and in accordance with the designs set up by representatives of the Navy with representatives of the Miller Construction Company?'

Defendant objected to the question:

'* * * for the reason and upon the ground that it is a matter of testing a matter of expert testimony, and the conclusion of this witness--this witness is not qualified to be able to answer.'

The objection was overruled and Miller answered:

'Yes, the concrete was mixed in accordance with those designs.'

Those are the questions, answers and rulings which are the subject matter of the second assignment of error.

It will be noticed from the first of the two questions that the plaintiff conceded that it delivered to the defendant during a three-day period concrete which did not meet the specifications. According to the plaintiff, the three-day period was July 27, 28 and 29, 1955. The plaintiff claims that all of its other deliveries complied faithfully with the contract and the specifications. It allowed the defendant a credit of $417.56 on account of the substandard concrete which it delivered July 27, 28 and 29. The defendant passed on the credit to the Navy and the latter accepted it. The evidence indicates that the Navy in due time accepted the buildings and, in making payment to the defendant, deducted from the contract sum the credit of $417.56 which we just mentioned.

We will now determine whether error was committed when the defendant's objections to the two challenged questions were overruled.

The plaintiff states that Mr. Miller was not offered as an expert witness and that the questions propounded to him called for nothing except the results of the observations which he made while overseeing the performance of the contract. The plaintiff claims that expert knowledge was not needed to enable Miller to answer the questions.

Occasionally samples of the concrete which the plaintiff delivered to the defendant were submitted to Northwest Testing Laboratories in Portland, and after that concern had subjected them to tests the Navy and the defendant were given the results. At times the plaintiff was acquainted with the results. The latter were accepted without cavil by all three and were deemed authoritative. Neither the plaintiff nor Miller ever attempted to subject the concrete to any tests or claimed the ability to test concrete for its compliance with the Navy's specifications.

Mr. Miller is apparently a very young man. Although he was president of the plaintiff corporation when he testified, he had held that office then for only a few months. In July 1955, when the plaintiff and the defendant entered into their agreement, Miller was the secretary of the company. Evidently his father had established the business and had formed the corporation. The father was president of the latter until his death. When death occurred the son (the witness whose testimony is under review) succeeded him as president. According to the son, he had been connected continuously with the company for only two years. Prior to that time 'I worked there,' so he testified, 'during summer vacations, during college terms, and so forth.' He described as follows the work he performed for the plaintiff:

'I did all manner of things, Mr. Dezendorf. As I said, I was employed to learn the business, and, oh, I worked in the batch plant, I even worked on trucks; I did odd jobs, all manner of things.

* * *

* * *

'The first year, as I stated yesterday, I was employed to learn the business. I learned to batch concrete, mix it in the truck, delivered it. On some jobs for instance we had, we were contracting, we even placed it and finished it.'

He swore that his purpose was to gain first hand information about all phases of the business, especially about the mixing and delivery of transit-mixed concrete. According to him, he participated in and was familiar with the negotiation of the contract between the plaintiff and the defendant. He added:

'Initially I was in on the design of the concrete with certain Naval representatives. * * *' He was conversant, so he swore, with the specifications written by the Navy which governed the concrete that his company was required to furnish to the defendant. We take the following from his testimony:

'Q. Did you work with representatives of the Navy in setting up the formulas under these specifications 13 YD? A. Yes, I did.'

Mr. Miller testified that he went to the air base virtually every day in the period covered by this case. The record does not suggest that the plaintiff's operations are large and that its products are many. Its business seems to center in concrete. It has eight trucks.

So far as we can determine from the record, an intelligent man who sought to become conversant with a business and who pursued the course which Mr. Miller described should be able to render himself familiar in two years with...