McInnis v. Buchanan , 53 Or. 533 ( 1909 )

Mr. Justice Slater

delivered the opinion of the court.

1. An objection is now presented for the first time that the complaint is fatally defective, because it is not stated therein that the alleged final certificate given by the architect to plaintiffs was never presented to the defendant, or that he had any knowledge of its existence before the commencement of the suit. The cases of Weeks v. O’Brien, 141 N. Y. 199 (36 N. E. 185) and Coey v. Lehman, 79 Ill. 173, 176, are cited in support of this contention, but neither of them, when applied to the facts, go so far as claimed by counsel. The former case is put upon the ground that the complaint neither averred that the certificate of the architect had been procured, nor that it was unreasonably withheld, while there was also a distinct issue in the pleadings whether the building had been completed according to the contract, and payment was refused on that ground. In the latter case the appellees failed to procure the acceptance of the work by the architect and his certificate, and the case shows that the work done upon the building, and the materials furnished were not satisfactory to the architect, and for that reason he had not accepted the work in writing, nor had he given a certificate for the balance due. It is only by the terms of the contract that plaintiffs are required to obtain a certificate, and there is a particular allegation that they “obtained a certificate from the architect to the effect that they had performed work and furnished material at the contract price of $53,294,” but there is also a general allegation in the complaint that plaintiffs duly performed each and everything under said contract to be performed by them. This we think, under Section 88, B. & C. Comp., is quite sufficient, even if presentation of the certificate, as well as its procurement, is by the contract a condition precedent to the right of payment.

2. If it were held otherwise, we are of the opinion that the pleadings show a waiver of the presentation of the certificate. The defendants refused to pay the balancé claimed by the plaintiffs to be due, not because of the noil-presentation of the certificate, or because of any failure to complete the building, or on account of quality of material, but for other reasons. Moreover, the certificate was issued May 28th, showing $10,194 to be due, but part payment of $8,887.10 was made by defendant on June 1st, and is acknowledged by plaintiffs in their statement of the account in the complaint; and the right to recover the balance is, by the express stipulation, the only matter in dispute. The only inference deducible from the facts averred is either that defendant knew from the architect that the certificate had been issued, or that, if he did not know that fact, he treated its presentation of no consequence and waived its production.

3. The remaining contention of the parties is mainly confined to the question of what the terms of the agreement were in fact. On the one hand, it is urged by plaintiffs that defendant had agreed to furnish and pay for the cement; and for that reason the written contract does not, through excusable inadvertence and mistake, express the minds of the parties, and should therefore be reformed; while the defendant insists that plaintiffs were to' furnish all materials, and that there was no mistake in reducing the agreement to writing. We find it unnecessary, however, to determine this question.

Assuming that the terms of the contract are as the defendant has contended, and that the obligation was upon plaintiffs to furnish all materials, yet from the averments of the answer and the evidence we are unable to see how defendant is entitled, as against plaintiffs’ demand for the balance of the contract price, to an offset, counterclaim, or credit to the amount of the reasonable value of cement furnished by him to a third person, although used in the construction of the buildingi It will be observed that defendant has first pleaded his right to a credit, not as a counterclaim or offset, but in effect as a payment under the terms of the contract, in substance that he furnished and paid for the cement and its value, and that it was used by the plaintiffs in the building, concluding with these words: “Which cement under said contract the plaintiffs were to pay for, or to allow the cost thereof to be deducted from said agreed price.” The contract referred to is not a special contract expressly made, or arising by implication from the facts transpiring at the time the material was furnished, for it is not averred that it was furnished at the instance or request of plaintiffs, but it is the original contract, and to that we must look to determine defendant’s rights. By section 5 of the contract, in part above quoted in the statement of facts, his right to furnish material and charge the value thereof to the plaintiffs is conditional; that is, upon a refusal .or neglect on their part to supply a sufficiency of material of proper quality, and then only upon a certificate to that effect by the architect, and after three days’ written notice to them to provide such material. From the evidence it clearly appears that, when bidding for the contract to construct this building, plaintiffs entertained an honest belief, formed from their construction of the specifications furnished by defendant’s architect, that they would not be required to furnish cement. They both testify that they did not include, in their estimate for their bid, anything for cement. The contract was executed by them without hearing it read or reading it themselves. It is upon a printed form usually used by architects for such purposes, the few blank places therein being filled by the architect. After the execution of the contract plaintiffs applied to Emil Schacht for a copy of it, and upon reading the copy furnished them, they observed that it required them to “provide all materials,” except for “plumbing and heating.” Immediately they returned and called Schacht’s attention to an omission of the words “and cement” from the exception to “provide all materials.” He admitted that there was an error in that respect, and wrote those words into their copy. The original contract was not then in Schacht’s possession, and was not changed, nor was defendant ever informed of the error claimed to exist, nor of the act of the architect in changing plaintiffs’ copy. Plaintiffs sublet the brick and concrete work to Elrath & Son, who were to “provide all the materials and perform all the work included in * * brickwork, concrete, etc., * * as shown on the drawings and described in the specifications prepared by Emil Schacht, architect."

4. Prior to execution of the original contract by plaintiffs Schacht suggested to his principal that it would be advisable for him to secure in advance sufficient cement with which to construct his building, for the reason that there might be a scarcity of that material. Defendant admits in his testimony that this took place, and that in reply he said: “I told him I thought it would be a good idea, but I never authorized him to charge it to me." Nevertheless Schacht did engage or secure cement in advance, and. J. R. McCraken, one of the dealers who furnished it, says that he understood it was engaged on the credit of Buchanan, and was to be charged to him. Schacht says that he understood all the time that Buchanan was to furnish the cement; that he so construed the specifications, but said nothing to Buchanan about that matter. We refer to these matters to show the attitude of the respective parties toward each other, and to aid us in drawing the proper legal conclusions from the circumstances immediately surrounding the furnishing and use of the cement. Elrath & Son were constructing the building under their contract with plaintiffs, and under the supervision of Schacht as architect. The latter testifies that when cement was needed, the contractors (evidently meaning Elrath & Son) usually notified him, when he would telephone to the dealer to send up to Buchanan’s building so much cement, usually 15 barrels at a load. When delivered, it was receipted for by Elrath & Son, who used it in the work they had contracted to do. Each of the plaintiffs testified that he was never asked by the defendant or by Schacht to furnish any cement, and that he never personally ordered any. The cement when delivered was charged to the defendant, and bills therefor were rendered to Schacht, who examined them; and, being found correct, they were subsequently paid by the defendant voluntarily. From this it clearly appears that there was no refusal or neglect by plaintiffs to supply a sufficient quantity of material of proper quality within the express terms of the written contract, although not reformed, but construed as the defendant has contended it should be construed. Hence the defendant was not entitled to furnish cement to the subcontractors and to charge the price thereof to plaintiffs. Nor are the surrounding circumstances such as to raise an implied assumpsit on the part of plaintiffs to pay the reasonable value thereof as furnished at their special instance or request: Walker v. Newton, 53 Wis. 336 (10 N. W. 436). In other words, there is no privity of contract, express or implied, shown to exist between the defendant and plaintiffs respecting the furnishing and use of the cement, and for this reason the latter are not legally bound to pay the defendant therefor.

5. Plaintiffs have appealed because of an allowance of but $200 by the lower court for attorney’s fees, whereas they alleged and sustained the averment, by competent uncontradicted testimony that $250 is a reasonable allowance for that purpose. Under the rule heretofore announced in Wright v. Conservative Inv. Co. 49 Or. 177 (89 Pac. 387), plaintiffs are entitled to recover the full amount alleged and established by uncontroverted testimony. In this respect it is necessary that the decree be modified so as to allow $250 as attorney’s fees, but otherwise it is affirmed.

Modified and Affirmed.