Young v. Borzone

• Decision Date: 03 September 1901
• Citation: 66 P. 135,26 Wash. 4
• Parties: YOUNG v. BORZONE et ux. [1]
• Court: Washington Supreme Court

66 P. 135

26 Wash. 4

YOUNG v. BORZONE et ux. ^[1]

Supreme Court of Washington

September 3, 1901

Appeal from superior court, King county; Boyd J. Tallman, Judge.

Suit by M. H. Young against Frank Borzone and wife to foreclose a lien for paving. From a decree in favor of plaintiff, and from an order denying a new trial, defendants appeal. Reversed.

Frank P. Lewis and Horace Peter, for appellants.

Preston & Embree, for respondent.

WHITE, J.

This is a suit in equity to foreclose a lien on certain lots in the city of Seattle for grading a street in front of such lots. Respondent moves the court to strike from the record and files the brief of the appellants, on the ground that the findings of fact and conclusions of law requested by appellants are not printed in the brief of the appellants and respondent further moves the court that, on granting the motion to strike the brief, the appeal be dismissed. The respondent further moves the court that the judgment of the lower court be affirmed, for the reason that the exceptions of appellants to the findings of fact and conclusions of law do not specifically point out the findings complained of as erroneous. Subdivision 5 of rule 8 (40 P. x.) provides that in all equity causes and actions at law tried by the court without a jury the party appealing shall print in his brief the findings of fact, with the exceptions thereto, etc., and also such findings as the lower court was requested to make with the refusal and exceptions in case any error or contention shall be based thereon. The opening brief of the appellants fails to comply with subdivision 5 of rule 8. The reply brief, however, complies with the same. This provision of the rule is for the benefit of the court. No injury can result to the respondent from failure to comply with it. Respondent is advised by the record in the case and the assignment of errors as to the points that will be urged on the appeal for a reversal. The printing of the findings etc., in the reply brief cures the omission. The last ground urged is not well taken. At the time of signing the findings the record shows that the appellants took exceptions in the following form and manner, which were allowed by the court 'The defendant, in open court, at the time the court signed the foregoing findings, except to each and every part of each and every of the foregoing findings of fact and conclusions of law; that is to say, to the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, and 15th findings, to the 1st and 2d conclusions of law,--which exceptions, and each of them, are allowed, and entered in the record in this action.' This was sufficient, under the rule laid down by this court in Ranahan v. Gibbons, 62 P. 773. The motions are therefore denied.

The respondent brought this action to foreclose a lien on certain lots of the appellants fronting on Roy street, in the city of Seattle and to recover $185.05, secured by such lien, for the grading of part of said street. At the instance and request of George Kinnear, an ordinance was passed by the city council of Seattle granting permission to Kinnear, defendant Frank Borzone, and three other persons named therein, to improve Roy street between Second avenue West and Kinnear Park, at their cost and expense, by grading and sidewalking said street under the direction of the city engineer. Under and pursuant to said ordinance the city engineer prepared plans of and specifications for said proposed improvement. These plans and specifications were partly in writing, and were set forth in a printed form used by the city of Seattle in advertising for proposals for the improvement of streets. Portions of the printed form were stricken out. The remaining portions contained many stipulations applicable to contracts made directly with the city, such as: 'Material necessarily wasted from the cutting shall be disposed of as the city engineer may direct, no extra allowance being made for hauling or disposing of the same, unless the distance hauled exceeds one thousand (1,000) feet. One cent per cubic yard will be paid for every one hundred (100) feet so hauled over and above one thousand (1,000) feet for public use.' 'The contractor shall not assign or transfer the contract for this improvement, or sublet any of the work embraced in it, without the written consent of the board of public works.' 'The work embraced in the contract for this improvement shall be begun immediately after written notice so to do shall have been given to the contractor by the board of public works, and carried on regularly and uninterruptedly thereafter (unless the said board shall otherwise, in writing, specially direct) with such force as to secure its completion within ninety (90) days thereafter; the time of beginning, rate of progress, and time of completion being essential conditions of said contract. And, if the contractor shall fail to complete the work by the time above specified, the sum of twenty dollars per day for each and every days thereafter; until such completion shall be deducted from the moneys payable under said contract.' The words 'ninety (90)' before 'days' were inserted in a blank space left in the printed form. Under the head, 'General Description of Work and Materials,' is the following, all being in writing after the words 'it shall consist of': 'The improvement herein described is authorized by Ordinance No. 4825 of the city of Seattle, and shall conform to the requirements thereof. It shall consist of clearing, grubbing, grading, parking, surfacing, sloping, constructing sidewalks, box drains, crossings, and bulkhead in the portion of Roy street above described, and the approaches thereto. The waste material from the excavation shall be deposited as follows: (1) In Roy street, where required for embankment, in the district included in this improvement. (2) In the projections of Fifth and Fourth avenues West and in Third avenue West from Roy street south towards Mercer street, as directed by the city engineer. Any clearing and grubbing necessary in any of said avenues shall be done or paid for outside of this contract, by the owner or owners of property abutting thereon. (3) On the property on the south side of Roy street as may be permitted by the owners thereof. The right to waste said surplus material shall be exercised in the order designated as above.' The following typewritten agreement was prepared in duplicate, and signed by the property owners and Hadfield & Roberts: 'An agreement made and entered into this 18th day of May, 1899, by and between Hadfield and Roberts, parties of the first part, and Geo. Kinnear, Violet E. Parker, Frank Borzone, John King, Helen Taylor, Ira Bronson, M. A. Parsons, and D. F. Decater, the parties of the second part, witnesseth: Said Hadfield and Roberts agree to clear, grub, sidewalk, and otherwise improve Roy street from Second Ave. West to the east side of Sixth Ave. West, or Clover street, according to the plans and specifications of the city engineer, and under his directions, as follows, to wit: All clearing and grubbing in said street for $95.00. Moving all earth, (18) eighteen cents per cubic yard. Sidewalks, culverts, and box drains, and bulkheads, including nails and spikes, ($11.05) eleven dollars per M feet, B. M. Upon the completion of said improvements and acceptance by the city engineer, said Geo. Kinnear, Violet E. Parker, Frank Borzone, John King, Helen Taylor, Ira Bronson, M. A. Parsons, and F. D. Decater agree to pay to said Hadfield & Roberts as per prices above mentioned, each in proportion to his ownership and interest in the property abutting and proximate to said Roy street and in said grade district liable by city law to pay for said improvements on said street, as the same shall be completed and distributed by the city engineer. Description of property: [Here follows description of the property, and opposite the same the name of the owner; one of the descriptions being: 'West half of vacated Meadow St., and block 23, G. Kinnear's addition,' opposite which was the name 'Frank Borzone.'] Witness our hands and seals the day and year above written.' The reason for preparing this agreement in duplicate was that some parties lived at one place, and some at another. One copy was sent in one direction, and one in another, for the signature of the owners. These two copies were introduced in evidence. The copy signed by the appellant Frank Borzone contains the following interlineation in writing after the description of the property: 'Each party hereto to pay only such part of the total cost as his front footage bears to the total frontage improved in said street.' The other copy, signed by some of the owners, contains the following interlineation after the words 'distributed by the city engineer': 'To be completed September 1st, 1899.' The respondent pleads that Frank Borzone and Louise Borzone were husband and wife; that they were the owners, as community property, of lots 1, 2, 3, block E, of Kinnear's Park addition to the city of Seattle; that said lots are the same property described in the contract hereafter mentioned as block 23 and the east half of Meadow street, in G. Kinnear's addition, being replatted under such description after the date of such contract. These allegations are not denied in the answer. The respondent further pleads that on the 18th of May, 1899, one Hadfield & Roberts, co-partners, on the one part, and George Kinnear and the others, mentioning them by name, who had signed the two duplicate agreements, including Frank Borzone, on the other part, entered into an agreement, partly written and partly typewritten, for having a portion of Roy street, in Seattle, Wash., cleared, grubbed, graded, and having sidewalks,...