Walsh Services v. Feek
| Decision Date | 21 September 1954 |
| Docket Number | No. 32655,32655 |
| Citation | 45 Wn.2d 289,274 P.2d 117 |
| Court | Washington Supreme Court |
| Parties | WALSH SERVICES, Incorporated, a corporation, Appellant, v. Richard J. FEEK and Elaine K. Feek, his wife, Respondents. |
Ferguson & Burdell, Donald McL. Davidson, Seattle, for appellant.
Skeel, McKelvy, Henke, Evenson & Uhlmann, Willard E. Skeel, Seattle, for respondents.
Respondents purchased an eighteen-year-old home in Seattle, in October, 1951. They desired to have it redecorated and remodeled before they moved into it. Mr. Feek consulted his friend, Roy Walsh, who stated that his company (the appellant) was engaged in that type of work. On two or three occasions, Walsh's son, Eugene, went over the house, room by room, with Mrs. Feek.
November 7, 1951, Gene Walsh prepared and delivered to respondents a letter setting forth in detail the several items of work to be done and an estimate of the costs. The total estimate of costs to the Feeks, including tax, was $4,592.98. The letter stated:
'Walsh Services, Inc.
November 7, 1951
'Mr. Richard J. Feek
'1641 Windermere Drive
'Seattle, Wash.
'Dear Sir:
'We submit herewith an estimate for the following listed repairs and decorating of your residence at the above address. This is necessarily an estimate because of the uncertainties of job finish conditions, types of materials, etc. The job will be done on a cost plus basis which will be the fairest for both parties.
'1. Living room:
Remove side lites and wall plugs in center of wall--repair plaster where removed and cracked.
Remove venetians and spot holes in hardwood.
Repaint 2 coats.
'2. Dining room:
Repair weather stripping on doors.
Remove wall fixtures and patch.
Paint complete 2 coats.
'3. Den:
Remove fixture, remove venetians.
Repair plaster.
Paint ceilings.
'4. Master bedroom and dressing room:
Remove venetians and wall fixtures.
Stipple walls and paint 1 coat.
Paint complete woodwork.
Build in corner dressing table--furnish glass top.
'5. Master bathroom:
Repair tile.
Paint 2 coats.
'6. Guest room:
Remove venetians--patch cracks.
Paint complete 2 coats.
'7. Wing hallway:
Paint complete 2 coats.
'8. Girl's room:
Paint complete 2 coats.
Remove venetians--patch cracks.
'9. Children's bathroom:
Repair plaster.
Paint complete 2 coats.
'10. Mother's room:
Paint complete 2 coats.
Remove venetians--patch cracks.
'11. Back hall--upper and lower--and 2 closets:
Paper walls.
Paint ceilings and closets 2 coats.
Cover fir floor with asphalt tile.
Cover stair treads with asphalt tile and rubber bullnose.
Remove pickets lower rails and rehang hand rail.
Paint woodwork 2 coats.
'12. Ace's room and bath:
Fill below tub.
Asphalt tile floors.
Paint complete 2 coats.
Apply chair rail.
Paper above chair rail.
Build in shoe rack in closet on sliding bars.
Build additional shelves in closet.
'13. Powder room--lower hall:
Paper walls.
Paint ceiling and woodwork 2 coats.
'14. Stairs to basement and lower hall:
Paint complete 2 coats.
Apply rubber treads and asphalt tile to floor and stairs.
'15. Spray paint fruit room, laundry room and furnace room, and storage room--1 coat cold water white.
'16. Recreation room:
Paint ceiling 2 coats.
Apply asphalt tile to floor.
Clean and varnish wood 1 coat.
'17. Garage:
Paint complete 1 coat oil base flat paint.
'18. Kitchen and breakfast nook:
Install Thermodore stove, 2 ovens (supplied by you).
Install dishwasher (supplied by you).
Install new base cabinets and sink.
Install new upper cabinets and hood over stove and oven area.
(Contractor to furnish detail plan sketch on kitchen before starting the work on kitchen).
Install new floor linoleum on entire area.
Install plastic linoleum drainboards and back splasher.
Cut out wall between breakfast area and kitchen to make service bar.
Modernize pantry cabinet dors.
Modernize all old kitchen cupboard doors left.
Paint complete 2 coats old work--3 coats new work.
Lower ceiling--install fan.
'19. Install new lite fixtures thruout except hall (allowance of $210.00 made for these fixtures).
'20. All hardwood woodwork to be washed only.
$4,459 20
"Tax 133.78
---------
"Total $4,592.98
'All work is to be performed under Union conditions and is to be completed as soon as possible, consistent with good workmanship.
'Sincerely,
'Walsh Services, Inc.
'[signed] Gene E. Walsh.
'Gene E. Walsh'
Respondents accepted this offer and appellant commenced the work. During the course of the work Mrs. Feek spent considerable time at the house. When the work was substantially completed, Gene Walsh presented to Mrs. Feek appellant's bill showing a total charge of $9,174.02, less $3,000 which had been paid on account. At the time of presenting the bill to Mrs. Feek, Gene remarked, 'Dick will blow his top when he sees it.' The trial judge, in his oral opinion, stated that Gene was a better prognosticator than he was an estimator. During the progress of the work, the Feeks asked Walsh at various times if he was staying within his estimate. His answers were evasive, but he led them to believe that there would be very little difference.
Respondents demanded an explanation of the overcharge and Mr. Gene Walsh replied by letter that the change in price from the estimate to the final billing was principally caused by the changes from the original plans of work outlined to the final work as performed. When respondents refused to pay the bill, appellant filed a lien on the property. After several meetings at which the parties were represented by counsel, appellant brought this action to foreclose the lien.
The complaint alleged that, pursuant to a contract, plaintiff commenced performing labor and furnishing materials in connection with the remodeling of the residence; that during the performance of said labor and the furnishing of said materials the contract was modified by agreement between the parties in that several itemized extras were added; that certain itemized subtractions were made from the contract; that the performance of said labor and the furnishing of said materials were of the value of $9,174.02 of which $3,000 had been paid on account; that notice of claim of lien was duly executed and filed; and that $6,174.02 is the amount due and unpaid on the aforesaid obligation. The prayer was for judgment in said sum together with interest and attorneys' fees.
Defendants answered admitting the contract dated November 7, 1951, and admitting that the contract was modified, but not to the extent pleaded. As affirmative defenses they alleged that charges were excessive, arbitrary and not in accordance with the usual custom and practice in the City of Seattle; that the labor performed and materials furnished were poor and inadequate and not up to the usual standard of workmanship as called for in said contract; that the amount properly due and owing is the sum of $1,592.98 which has heretofore been offered to plaintiff in settlement of this dispute. Defendants deposited $1,592.98 with the registry of the court and prayed that plaintiff not be awarded any costs or attorneys' fees. During the course of the trial respondents admitted that an additional $389.56 was owing, which sum they paid to the clerk of the court.
The trial court found that the letter was in the nature of a cost plus contract; that the respondents were constantly assured during the progress of the work that the charges would be very close to the original estimates; that the contract was modified in that certain extras were added; that defendants were not advised, as the work progressed, that plaintiff intended to make charges for extras; that the work was not given adequate or proper supervision and, as a result, the number of labor hours charged for the job was excessive by at least fifty per cent; that charges for certain work and material were excessive and that certain work was poorly and inadequately done and would have to be redone; and that plaintiff was not entitled to a reasonable attorneys' fee. Judgment was entered for appellant in the amount of $1,982.54, which was the amount of funds on deposit with the registry of the court.
Appellant assigns error to the refusal of the trial court to enter judgment in its behalf in the sum of $9,174.02 plus attorneys' fees and costs. The contention is also made that the findings of fact are not supported by the evidence.
The trial court based its decision primarily on the testimony of Tennys Bellamy, an architect of many years experience in the construction, repair and remodeling of buildings and houses. Mr. Bellamy made a thorough examination of all of the work done. He based his testimony on that examination, the original estimate, the invoice for $9,174.02, less $3,000 paid, a recap sheet of the work done (including extras), job sheets showing labor and material, and a deposition given by Gene Walsh, which had a breakdown of each item and the amount charged therefor. He took the original estimate and added the extras which were authorized. He also added certain extras which were reasonable and necessary, although not specifically authorized. He rejected several items which were neither necessary nor authorized. He found a considerable portion of the work to be defective. He found the charge for labor to be exorbitant. Appellant, in its invoice, listed: carpenters, 612 hours; painters, 805 hours; helpers, and apprentices, 48 hours; plumbing, electrical work, and miscellaneous, 300 hours; or a total of 1,765 hours. Bellamy testified that the work could have been properly performed with carpenters, 300 hours; painters 400 hours; helpers, 25 hours; plumbing, electrical work and miscellaneous, 150 hours, or a total of 875 hours.
Most of the work was done in the kitchen. The contractor originally estimated that this would cost $1,235. To this Bellamy added $1,032.38 for extras, making a total...
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Modern Builders, Inc. of Tacoma v. Manke
... ... RCW 60.04.130; Walsh Serv ... Inc. v. Feek, 45 Wash.2d 289, 274 P.2d 117 (1954). See generally Swenson v. Lowe, ... ...
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Brower Co. v. Noise Control of Seattle, Inc.
...abuse its discretion in not allowing attorneys' fees and costs. See Hughes Co. v. Flint, 61 Wash. 460, 112 P. 633; Walsh Services, Inc. v. Feek, 45 Wash.2d 289, 274 P.2d 117; Forrester v. Craddock, 51 Wash.2d 315, 317 P.2d The granting of or the failure to grant interest presents a differen......
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Trane Co. v. Brown-Johnston, Inc.
...The decision as to whether to award attorney fees pursuant to RCW 60.04.130 is discretionary with the court. Walsh Servs., Inc. v. Feek, 45 Wash.2d 289, 274 P.2d 117 (1954); Modern Builders, Inc. v. Manke, 27 Wash.App. 86, 96, 615 P.2d 1332 (1980). Since costs and attorney fees are not reco......
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Frank v. Fischer, 53468-3
...statute, not the lien foreclosure statute. Moreover, the award of fees under RCW 60.04.130 is discretionary. Walsh Servs., Inc. v. Feek, 45 Wash.2d 289, 298, 274 P.2d 117 (1954). In sum, we conclude that Fischer is not a contractor by virtue of the exemption provided by RCW 18.27.090(12). T......