Zanello v. Smith & Watson Iron Works

• Citation: 62 Or. 213,124 P. 660
• Parties: ZANELLO et al. v. SMITH & WATSON IRON WORKS.
• Decision Date: 09 July 1912
• Court: Supreme Court of Oregon

124 P. 660

62 Or. 213

ZANELLO et al. v. SMITH & WATSON IRON WORKS.

Supreme Court of Oregon

July 9, 1912

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by G. Zanello and Fred Zanello, partners under the firm name of G. Zanello & Son, against the Smith & Watson Iron Works. From a judgment for plaintiffs, defendant appeals. Affirmed.

This is an action to recover money. It is alleged in the complaint in substance: That at all the times stated therein the plaintiffs, G. Zanello and Fred Zanello, were partners as G Zanello & Son, and the defendant, the Smith & Watson Iron Works, was a corporation; that on October 9, 1909, the defendant employed plaintiffs to build at Portland the walls of its foundry, agreeing to furnish the necessary brick and to pay for laying them $7 per thousand, the plaintiffs to supply the remaining material; that they completed the work within the time limited and in accordance with the contract and specifications, "but that owing to heavy storms of rain and snow, and freezing weather prevailing when said work was required by defendant to be done, and when it was done and the water-soaked and frozen and defective condition of the brick furnished by defendant for said work, the mortar in the joints of part of said work froze and killed, and the joints were rendered imperfect on account thereof, and the walls of said building in places imperfect in other respects but that such imperfections and defects were not the fault of plaintiffs, but were occasioned by the condition of the brick furnished by defendant, and by the freezing and killing of the mortar, as aforesaid; that defendant on or about December 18, 1909, accepted the work, and has ever since been and is now using and occupying the said building for the purpose for which it was built;" that in doing the work plaintiffs laid in the walls of the foundry 476,000 brick, amounting to $3,332, on account of which there had been paid only $2,500 thereby leaving due $832, for which judgment was demanded with interest from the time the building was accepted.

The answer denied that plaintiffs performed the work as required, but admitted all other averments of the complaint. For a further defense it was alleged in substance that, by reason of the defective work, occasioned by the freezing of the mortar, and by plaintiffs' refusal to put the walls of the building in proper condition, the defendant was compelled to purchase material and to employ labor in making repairs, paying therefor $225; that in order to complete the work it would be necessary to expend the further sum of $700, amounting to $925; that deducting therefrom $832, the sum claimed by plaintiffs, there remained $93, for which sum judgment was demanded.

The reply put in issue the allegations of new matter in the answer, whereupon the cause was tried, resulting in a verdict and judgment as demanded in the complaint, and the defendant appeals.

W.P. La Roche, of Portland (Schnabel & La Roche, of Portland, on the brief), for appellant.

Albert H. Tanner, of Portland, for respondents.

MOORE, J. (after stating the facts as above).

The only error assigned is the court's denial of defendant's request to instruct the jury as follows: "I charge you that to excuse the performance of a contract the instrument itself must make some suitable provision for such nonperformance, for he could have provided against that in the contract."

Though a bill of exceptions appears to have been settled and allowed, it does not accompany the transcript. This appeal was tried, pursuant to stipulation, upon an abstract which does not include any of the testimony received or of the instructions given.

The brief of respondents' counsel contains statements as follows: "Upon the trial of the case plaintiffs gave evidence tending to sustain the allegations of their complaint, and also tending to show that the work of laying said brick was done in rainy and freezing weather at the request of defendant, and that it agreed to...