Zindorf Const. Co. v. Western Am. Co.

• Decision Date: 23 December 1901
• Citation: 27 Wash. 31,67 P. 374
• Parties: ZINDORF CONST. CO. v. WESTERN AMERICAN CO. [1]
• Court: Washington Supreme Court

67 P. 374

27 Wash. 31

ZINDORF CONST. CO. v. WESTERN AMERICAN CO. ^[1]

Supreme Court of Washington

December 23, 1901

Appeal from superior court, King county; J. A. Williamson, Judge.

Action by the Zindorf Construction Company against the Western American Company. From a judgment in favor of defendant plaintiff appeals. Affirmed.

Fullerton and Anders, JJ., dissenting.

John F Dore and Burke, Shepard & McGilvra, for appellants.

George E. Wright and Fogg & Fogg, for respondent.

HADLEY J.

On the 22d day of June, 1898, appellant entered into a written contract with respondent to the following effect: Appellant agreed to construct and finish in the most substantial and workmanlike manner, and to the satisfaction and acceptance of respondent or its engineer, all the work required in the construction of a railroad line from Carbonado, Pierce county, Wash., to, and for a short distance beyond, a mine belonging to respondent in section 26 township 18 N., range 6 E., W. M. The contract contained the following provision: 'The said final estimate of the said engineer of the amounts of work done shall be final and conclusive, and binding upon all the parties to this agreement. But no engineer's certificate, and no payment by the party of the first part, shall be construed to operate as an acceptance of work theretofore performed, or as a waiver of any claim arising out of the failure to perform this agreement. The superintendent of the party of the first part is hereby constituted an arbitrator, to whom shall be submitted any dispute arising out of this agreement, or the performance thereof; and his award in the matter shall be final, conclusive, and without appeal therefrom.' This suit was brought by appellant against respondent, and was begun in November, 1898. In the complaint and amended complaint it is alleged, in substance, that the appellant has duly performed all the conditions of the said agreement on its part to be performed, and that the respondent would permit it to perform, and that respondent has failed to comply with said contract in the following particulars; that the respondent discouraged the men employed by appellant from continuing in the employ of appellant, informing them that they would not receive their pay for services rendered by them for appellant, thereby attempting to make it impossible for appellant to finish its contract within the time specified therein; that in many instances the respondent hired men who were employed by appellant, and took them from the work that appellant was performing for respondent; that respondent refused to give appellant grade and center stakes, bills for material, and plans and measurements by which to perform the contract; that appellant several times demanded the plans and specifications, for the purpose of performing the work set forth in the contract that respondent failed to furnish the timber for the construction and completion of a number of cribs that were to be made under the terms of said contract and specifications, and also refused to permit appellant to build the culverts with their bottom logs laid close together, and allow the top and bottom logs to extend one foot beyond the outside wall, as specified in said contract; that respondent further refused to allow the plaintiff to build the culverts set forth in the specifications of sufficient dimensions to fill within them a stone or brick structure of ample size to carry the water, or to build them large enough to receive within them mason work; that respondent hindered, obstructed, and prevented appellant in carrying on its contract, to the damage of appellant in the sum of $20,300, for which sum it demands judgment. To the original complaint certain motions were directed, which were allowed in part and denied in part. Similar motions were directed to the amended complaint, which were denied in view of certain stipulations on the part of appellant. Thereupon the respondent demurred to the amended complaint, but the demurrer was never called up for hearing before the court. The demurrer was filed on the 8th day of April, 1899. Thereafter, on the 5th day of September, 1899, respondent filed a motion to dismiss this cause; the motion being, in substance, as follows: That subsequently to the beginning of said action, to wit, on the 29th day of August, 1899, all the matters, issues, and controversies involved therein were settled and determined in favor of the respondent and against appellant by the judgment and decree of said court rendered in the matter of the arbitration between the Western American Company and the Zindorf Construction Company, numbered 27,437 in the files of said court; that subsequently to the beginning of said action all matters therein involved were by appellant and respondent submitted to the arbitration of one H. S. Huson, the superintendent of said Western American Company, as provided in the agreement in writing set forth in the amended complaint; that said arbitration was conducted by and before said arbitrator in all respects according to law; and that said arbitrator thereupon made his award in the premises according to law, which said award, under seal, was thereafter filed with the clerk of said court according to law, and a copy thereof was upon the 26th day of July, 1899, served upon appellant, and upon which award the said court rendered the judgment above mentioned. Thereafter said motion to dismiss, having been heard by the court, was granted; and on the 29th day of September, 1900, the court signed a judgment dismissing the action, which judgment was afterwards duly filed on the 9th day of October, 1900. From said judgment this appeal was taken.

Respondent moves to strike the statement of facts for the reason that the statement was not filed until the 7th day of March, 1901, whereas the judgment appealed from was filed for record on the 9th day of October, 1900. It is urged that the statement was filed after the expiration of the limit allowed by law, as provided by section 5062, 2 Ballinger's Ann. Codes & St. The motion is well taken, and must be granted. The utmost limit of time within which a statement can be filed is 90 days after the time begins to run within which an appeal may be taken. If filed after 30 days, it must be done by authority of an order of the court extending the time; but such time cannot be extended, in any event, beyond the 90-day period provided by statute. See State v. Seaton (decided by this court Oct. 17, 1901) 66 P. 397.

There being no statement of facts before the court, the only question for this court to determine is whether the trial court erred in its conclusion of law based upon the findings of facts. Certain affidavits are included with the record certified here by the clerk of the superior court, which have the appearance of having been considered by the trial court at the hearing upon the motion to dismiss; but there is no certificate of the court that they were so considered, other than the general statement in the preface to the findings of facts, and also in the judgment, that the motion was submitted to the court upon the evidence, and 'upon the records, files, and proceedings herein.' The statement is made both in the findings and in the judgment that the court heard 'evidence and proofs,' but no reference is made to affidavits. If we should assume that the affidavits were by consent treated as evidence at the hearing, still it does not appear that they constituted all the evidence upon which the court's findings were based. We will not, therefore inquire into the correctness of the findings, but will confine ourselves to a discussion of the court's conclusion of law from the findings. The court found substantially as follows: That under the terms of the agreement set forth in the complaint the respondent proceeded to serve written notice upon appellant to arbitrate all the matters, suits, causes, controversies, and differences arising out of said agreement, or out of the performance thereof, or out of the matters and issues involved in this suit, and thereafter the arbitrator, being then the superintendent of respondent, served like written notice upon both appellant and respondent; that thereupon appellant served upon respondent a counter notice that a suit had several months before been instituted in the superior court by appellant against respondent concerning the matters in difference...