McDonald v. Supple ( 1920 )

BEAN, J.

Error is predicated, first, upon the amendment of the complaint; second, in refusing to grant the motion to strike out paragraph VII of the amended complaint; also in denying defendant’s motion for a nonsuit. These assignments of error raise practically the same question. It will be noticed that in the original complaint plaintiff alleged that it was agreed in writing that he should perform certain services for defendant for a certain fixed compensation, and that by a subsequent and supplemental oral agreement between plaintiff and defendant the defendant agreed to pay plaintiff for his services what the same were reasonably worth.

1. The amended complaint which was filed before the trial, sets forth the facts constituting an implied agreement to pay, in addition to the written contract prices, such a sum as would reasonably compensate plaintiff for the services performed by him under the changed conditions and circumstances set forth in the amended complaint, which work was accepted with a full knowledge of all conditions by defendant Supple. We do not think there is such a difference or inconsistency between an express agreement and a promise implied by law as to preclude an amendment or change from one to the other, to be made before trial. In the case of Elder v. Rourke, 27 Or. 363 (41 Pac. 6), the two allegations were included in the same complaint, and it Was approved by this court. In that case plaintiff alleged that he

“performed work and labor for defendant, at his special instance and request, in cutting, heading, and harvesting the wheat then growing on nine hundred and sixty-five acres of land, at the agreed and stipulated price of one dollar and twenty-five cents per acre, amounting in the aggregate to the sum of one thousand two hundred and six dollars and twenty-five cents; that said work and labor was and is reasonably worth the sum of one dollar and twenty-five cents per acre, and of the reasonable aggregate value above stated.”

Error was there assigned in permitting plaintiff to testify that the work performed by him was reasonably worth $1,25 per acre. It was held'that the evidence was within the issues made by the pleadings. In Zimmerle v. Childers, 67 Or. 465, at p. 471 (136 Pac. 349, at p. 351), Mr. Justice Ramsey said:

“The provision of Section 102, L. O. L., providing that the amendment of a pleading shall not substantially change the cause of action or the defense, does not apply to amendments made before trial. It applies only to amendments made during the trial. ’ ’

See Talbot v. Garretson, 31 Or. 256 (49 Pac. 978), and Mallory v. City of Olympia, 83 Wash. 499 (145 Pac. 627).

As we view it, the amendment was properly allowed in the discretion of the trial court. No new facts were set up in the amended complaint, and the defendant was not prejudiced by the change in the pleading.

2. The amended complaint averred and the testimony on the behalf of plaintiff tended to show, that the defaults on the part of defendant, Supple, in the performance of the original contract were so numerous and so vital that they caused the plaintiff, Wakefield, to perform his labor under different conditions, at a different time, and in a different manner, than contemplated or agreed upon by the parties in the original writing, and so much more burdensome and difficult than was originally agreed upon, that plaintiff, Wakefield, was not required to accept the compensation fixed in the original contract as the measure of his recovery; but by reason of the important changes in the work to be done and the defaults on the part of defendant, Supple, in his performance of the contract, plaintiff was entitled to recover in addition to the contract price such a sum as would reasonably compensate him for the services performed by him and accepted by the defendant. There was no error in denying the motion for nonsuit: Hayden v. Astoria, 74 Or. 525 (145 Pac. 1072); Id., 84 Or. 205 (164 Pac. 729).

3-7. Error is claimed on admission of testimony referring to the condition of the steel for the construction of the dredges at the time of its arrival in Portland, when it was delivered J)y defendant* Supple, to plaintiff, Wakefield, as to the lack of numbers. on the different parts of the material to show how they were to be put together, and the lack of paint on the steel, so that the numbers would not come off. The testimony clearly showed that about 75 or 80 per cent of the numbers had dropped off in transporting the steel from Michigan to Portland, Oregon, by reason of exposure to the elements and the erosion of the steel, making it very difficult and practically impossible to place the several parts on the dredge or assemble the same, and rendering the assembling of the parts, according to the testimony, like a “Chinese puzzle,” and taking two or three times as long to perform the work as it would if the material had been properly painted and marked and increasing the cost in the same proportion.

We think that we should start with the premise that the plaintiff was entitled under the contract to have the material delivered to him in a reasonably suitable condition for assembling. Over the objection and exception of the defendant’s counsel, Mr. S. E. Booth, a witness for plaintiff, was permitted to testify thus:

“Q. What is the fact as to steel which has been painted and the numbers put on top of that, and shipped from back in Michigan or that distance, as to whether those numbers on top of the paint would stay on or not?

“A. Oh, those numbers always stay on.”

Defendant complains that over his objection and exception the court permitted testimony to be introduced explaining the meaning of the word “fabricated,” as-used in the contract between Supple and Wakefield, whereby Supple agreed to “deliver f. o. b. cars, all of the steel work for hull3 fabricated and ready for erection, but not riveted, nor bolted up, and all of the steel work for trusses and ladder, fabricated and riveted, but not assembled,” which tended to show that, according to the term as used “by the trade,” the material when fabricated would go together in a good workmanlike manner. For the proper construction of an instrument the cireumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may be shown, so that the judge will be placed in the position of those whose language he is to interpret: Section 717, L. O. L.

The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a technical, local, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement shall be construed accordingly: Section 718, L. O. L. It is competent to introduce testimony to supply those terms actually agreed upon by the parties to a written agreement, but not contained in nor conflicting with an incomplete written contract: Section 713, L. O. L. The contract in question did not state when the material was to be delivered. There was much controversy over this point: See Hayden v. Astoria, 74 Or. 525 (145 Pac. 1072); Id., 84. Or. 205 (164 Pac. 729); American Contract Co. v. Bullen Bridge Co., 29 Or. 549 (46 Pac. 138); Stuart v. University Lbr. Co., 66 Or. 546 (132 Pac. 1, 1164, 135 Pac. 165); Holmboe v. Morgan, 69 Or. 395 (138 Pac. 1084); 17 Cyc. 741; 2 Elliott on Contracts, § 1634.

Numerous other objections and exceptions were .saved by defendant to the introduction of the testimony, which we do not deem necessary to set forth in this memorandum. We find no reversible error in the admission of the testimony.

8. The testimony on behalf of plaintiff tended to establish such changes in the wort caused by the failure of the defendant to perform his part of the contract, which made the labor more burdensome and extended the same to two or three times the amount. it would ordinarily have been, if the material had been delivered at the time and in the condition agreed upon. Therefore the plaintiff could properly recover upon a quantum meruit: Hayden v. Astoria, 74 Or. 525 (145 Pac. 1072); Id., 84 Or. 205 (164 Pac. 729); Gray v. Jones, 47 Or. 40 (81 Pac. 813); Demott v. Jones, 2 Wall. (69 U. S.) 1 (17 L. Ed. 762, see, also, Rose’s U. S. Notes); Salt Lake City v. Smith, 104 Fed. 457 (43 C. C. A. 637).

9. Under the contract Wakefield was entitled to partial payments as the work progressed, and he submitted various statements to defendant with such object in view, and accepted money under such estimates. It was not contemplated that such advance payments should be a final settlement of any part of the work, and the contention of defendant that plaintiff is thereby estopped from claiming additional compensation cannot be maintained. The evidence tended to show that, in different conversations between Wakefield and Supple, the latter told Wakefield in effect to go ahead .and do the work, and Supple would make it all right with him when he got through. A similar question was carefully considered by Mr. Justice McCamant, in Hayden v. Astoria, 84 Or., at p. 220 et. seq. (164 Pac. 729). See Sweeney v. Jackson County, 93 Or. 96 (178 Pac. 365).

10. It was the claim of defendant, as asserted in his pleading and by his testimony, that the increase in amount of time consumed for the labor was caused by the fault of plaintiff. The issues in that regard were squarely raised, and were determined by the verdict of the jury. We are not concerned in the conflict of the testimony.

11. It is contended on behalf of defendant that there were only two deviations from the original plan of the contract, and that as a matter of law the deviations were net numerous enough to abrogate or change the original contract. Such a departure from the original contract cannot be determined by the number of deviations, as one important change might render the contract an entirely different one. The testimony tended to show that the steel, when delivered to Wakefield, was “partly fabricated” or in process of fabrication. Let us suppose that it had not been “fabricated” or prepared for erection at all. That would have been but one change, and yet it would entirely change the agreement of the parties, and the plaintiff would not have been required to construct the dredges for the same compensation mentioned in the written contract.

Exception is also saved to the introduction of testimony as to the number of rivets To be driven to the ton of steel. This question was practically eliminated'from the case by the instructions of the court to the jury as stated in appellant’s brief.

Wakefield proceeded with the construction of the dredges after the failure of the defendant to deliver the material as agreed, at the urgent request of defendant, Supple, and was entitled to recover a reasonable compensation caused by the changes referred to, upon the same principle that a contractor is entitled to recover for extra work performed in addition to the contract.

The cause has been tried by two juries. Two verdicts in favor of plaintiff have been rendered. We find no reversible error in the record. The judgment of the lower court is therefore, affirmed.

Affirmed.

McBride, C. J., and Benson and Johns, JJ., concur.