Western Asphalt Co. v. Valle

• Decision Date: 18 July 1946
• Docket Number: 29789.
• Citation: 171 P.2d 159,25 Wn.2d 428
• Parties: WESTERN ASPHALT CO. v. VALLE et ux.
• Court: Washington Supreme Court

171 P.2d 159

25 Wn.2d 428

WESTERN ASPHALT CO. v. VALLE et ux.

No. 29789.

Supreme Court of Washington

July 18, 1946

Department 2

Rehearing Denied Sept. 10, 1946.

Action by the Western Asphalt Company, a corporation, against Henrik Valle and wife, doing business as Henrik Valle Company, for the value of services performed by plaintiff in computing the costs of asphalt pavement and soil stabilization portions of a general contract awarded defendant for construction of a Naval Advance Base Depot. From an order granting plaintiff a new trial after a jury's verdict for defendants defendants appeal.

Appeal from Superior Court, King County; Clay Allen, Judge.

John P Lycette, and Charles A. Spirk, both of Seattle, for appellants.

Rummens and Griffin, of Seattle, for respondent.

BEALS Chief Justice.

Western Asphalt Company, a Washington corporation, instituted this action against Henrik Valle and his wife, Ellen Stray Valle alleging in its complaint its corporate existence and that the defendants were husband and wife engaged in a general construction business under the name of Henrik Valle Company; that during the month of July, 1944, the defendants were preparing to submit a bid for a general construction job involving the building of a Naval Advance Base Depot at Tacoma, Washington, in accordance with general plans and specifications, which included asphalt pavement and soil stabilization; that at the request of defendants, plaintiff furnished them with its engineering services in computing costs relating to the asphalt pavement and soil stabilization portions of the general contract; that plaintiff's services, computations and costs were by plaintiff furnished to defendants and were used by them in submitting their bid; that the computations and estimates furnished defendants by plaintiff aggregated $294,539.51, and that, aided by the facilities and computations furnished by plaintiff, defendants bid upon the contract and were the low bidder for the general contract for the entire construction, including the asphalt pavement and the soil stabilization; that defendants were awarded the general contract for approximately $1,996,000; that the reasonable value of the services performed by plaintiff for defendants was the sum of $43,000, for which amount plaintiff prayed for judgment.

Defendants admitted that they were husband and wife and engaged in business as alleged by plaintiff, and denied each and every other allegation contained in plaintiff's complaint, praying that the action be dismissed.

The cause was tried to a jury which returned a verdict in favor of the defendants, whereupon plaintiff moved for judgment in its favor notwithstanding the verdict, or in the alternative for a new trial, basing its motion for a new trial upon six of the statutory grounds.

The trial court denied plaintiff's motion for judgment in its favor notwithstanding the verdict, but granted plaintiff's motion for a new trial upon two grounds mentioned in the order as follows:

'1. Error of the Court in giving instruction No. 11 which was excepted to at the time by the plaintiff.

'2. That the verdict is contrary to the evidence adduced at the trial and substantial justice has not been done.'

From this order the defendants have appealed to this court.

We shall refer to appellant Henrik Valle as though he were the sole appellant.

Appellant assigns error upon the refusal of the trial court to grant his motion to dismiss the action, which motion was interposed at the close of respondent's case and renewed at the close of all the evidence; upon the order of the court granting respondent's motion for a new trial, and upon the refusal of the trial court to enter judgment in appellant's favor upon the verdict of the jury.

As appellant did not stand upon his motion to dismiss interposed at the close of respondent's case, but proceeded to introduce evidence on his own behalf, appellant's motion for judgment in his favor as matter of law made at the close of all the evidence is the only motion which may be considered on appeal.

The somewhat complicated facts may be stated as follows:

Respondent is engaged in the business of laying asphalt paving and similar work. While respondent occasionally directly contracted for the laying of asphalt, it more frequently entered into subcontracts with general construction contractors.

When respondent's officers learned that a contract in which it might be interested was about to be let, preparations would be made for bidding upon any desirable subcontract, and plans and specifications would be obtained to enable respondent to prepare necessary estimates. Information concerning these estimates would often be made available to any reputable general contractor who asked for them, the estimates being made so available to the general contractors because of respondent's desire to obtain from the successful bidder a subcontract for the installation of so much of the work as fell within the scope of respondent's activities.

It does not appear that respondent ever made a charge for this service of furnishing estimates of prices, but apparently respondent had always received the subcontracts for the installation of asphalt paving when the general contractor to whom it had furnished data had been awarded the contract for the entire job.

About July 20, 1944, respondent learned that the United States Government would open bids for the construction of the Naval Base Advance Depot at 11 a.m., July 28, following. The construction included a substantial amount of asphaltic pavement, and July 22 respondent's officers procured the plans and specifications from a general contractor who was expecting to file a bid. The specifications were introduced in evidence, and comprised thirty-two sections. Section 9, shown on six pages, provided for soil stabilization, and Section 10, of three pages, covered the laying of asphaltic concrete. It was these two sections which interested respondent, whose plant was just across the street from the land upon which the Naval Base was to be built.

This was the largest contract with which respondent had ever been concerned, and its officers were anxious to obtain a subcontract for that portion of the work in which respondent was engaged.

At the request of an officer of respondent, two competent persons computed the yardage required for the soil stabilization and for the asphaltic concrete. For this respondent paid seventy-five dollars. Three of respondent's officers independently estimated the amount of asphaltic work to be done and the total price at which respondent would do the work. July 27, the day Before the bids were to be opened, the three agreed upon a common figure as respondent's estimate. This estimate was typed upon respondent's letterhead, and without the name of any addressee reads as follows:

'Gentlemen:

'We are pleased to quote the following prices for furnishing all labor, equipment, supplies and materials necessary for completing asphalt pavement and soil stabilization at the Naval Advance Base Depot, Tacoma, Washington, in accordance with Sections 9 and 10 of plans and specifications and addenda thereto. Basic Bid Section 9-17¢ per square yard; Section 10-82¢ per square yard.'

The estimate continued with certain statements concerning other portions of the contract, prices being included.

Page 1 includes the following: 'The foregoing quotations are unit prices. We based our figures upon the approximate areas shown on the attached sheet, but cannot guarantee those quantities. However, no change of unit price will be involved because of reasonable variation in quantities.'

Upon an attached sheet is found the following:

'For your information and checking, our estimator obtained the figures listed below Before issuance of addendum covering G-1 and G-2. We have been unable to obtain plans to figure those changes, as the Navy will not issue plans to Sub-Contractors.

'Minimum asphalt concrete area--300,745 square yards

'Minimum soil stabilization area--281,933 square yards'.

During the afternoon of July 27, a copy of the foregoing was furnished by request to each one of seven or eight of the general contractors who expected to bid on the job, the letters having been personally delivered.

At about 8 o'clock in the morning of July 28, Robert Allison, who was then in the employ of appellant as an estimator, and who was busily engaged in preparing appellant's bid for the Naval Base which was to be submitted at 11 o'clock that morning, telephoned respondent's office in an effort to obtain information concerning respondent's estimates and prices for the work involved in the general construction contract concerning which respondent had prepared estimates. Respondent's president, Mr. T. D. Tyrer, was absent from the office, but was informed by respondent's bookkeeper, Mrs. Eleanor Byers, concerning Mr. Allison's call.

At 9 a.m., Mr. Tyrer telephoned Mr. Allison, and, concerning this conversation over the telephone, Mr. Tyrer testified as follows:

'Q. Did you call Mr. Allison then? A. Yes, I called him on the phone and he said he wanted our asphalt prices for the Tacoma Navy job. I asked him whom he was bidding with and he said he was working for Valle and wanted the figures for Valle. I told him that I did not have the figures in my head, that I had not memorized the areas, the addenda, and so forth, and as I was rushing to Tacoma right at that time there was nothing I could do for him. Then he told me he had been working on this bid for, I believe, a week and that he had worked all that night and had not been to bed; that he was down to the asphalt item and if he did not quote the asphaltic figures he could not bid the job. I asked him why h...