Bay Construction, Inc. v. Olsen ( 1945 )

¹ Reported in 161 P.2d 177. This is an appeal from a judgment entered upon the verdict of a jury, in favor of plaintiff, in an action for loss of profits flowing from a breach by defendants of an oral contract.

Defendant Olsen is a building contractor. Prior to September 14, 1943, he had entered into a contract with the Federal housing authority for the construction of a housing project known as the Duwamish building project. The land upon which the buildings were to be erected was below grade, and the contract called for earth filling to bring it up to a designated level.

On September 14th, Olsen entered into a contract with plaintiff to make the fill and rough grade it for seventy cents a yard. Plaintiff was ready to start operations on September 16th. Owing to certain difficulties he had encountered in connection with contract with the Federal housing authority, Olsen did not want plaintiff to start work at that time.

Plaintiff, however, began to haul sand for the fill on September 21st. It had some dozen dump trucks on the job. At about nine o'clock that morning, after the trucks had deliveredat least one load each, defendant Olsen ordered plaintiff to discontinue operations; subsequently, however, he permitted plaintiff to continue throughout the day. Something over a thousand yards of fill material were delivered. (There is no controversy on appeal over the right of plaintiff to recover for the amount of material so delivered at the agreed price of seventy cents a yard.) Plaintiff, however, was not permitted to go further in carrying out its contract.

Plaintiff brought this action for loss of profits. The defendants interposed the defense of the statute of frauds — Rem. Rev. Stat., § 5836-4 [P.P.C. § 854-7], which provides:

"(1) A contract to sell or a sale of any goods or choses in action exceeding the value of $50 shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. . . .

"(3) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods."

At appropriate times during the trial and by motion for judgment non obstante, defendants challenged the sufficiency of the evidence to take the case to the jury, contending that the contract was for the sale of goods in contemplation of the statute,

"that no part thereof was accepted by the defendants or received by them, and that nothing was given in earnest to bind the contract and in part payment thereof, and that no note or memorandum in writing of the contract was made or signed by these defendants."

(It is conceded that no earnest was given, and that no memorandum in writing was signed.)

The motions were denied, and, as before stated, judgment was entered on the verdict in favor of plaintiff.

The only question presented on appeal is whether the evidence was sufficient to take the case to the jury in the light of the provisions of the statute of frauds, Rem. Rev. Stat., § 5836-4, subd. (3).

Respondent contends that the contract was for work, labor, and materials, and, consequently, does not fall within the ban of the statute. In the view we take of the evidence, it is unnecessary to discuss or pass upon this contention. For, conceding the contract was for the sale of "goods" in contemplation of the statute, we think the evidence was sufficient to take the case to the jury on the issue as to whether there was a delivery by respondent, and an acceptance by appellants, of a part of the "goods" pursuant to the oral contract. In arriving at this conclusion, we, of course, appraise the evidence under the rule that it must be viewed in the light most favorable to respondent.

Appellants' evidence was to the effect that, on September 17th, they let a contract for the filling to Thorburn and Logozo, and that they caused respondent to be informed of that fact on September 18th. This is denied by the witnesses for respondent. In any event, appellant Olsen met with three representatives of the respondent at the project on the afternoon of September 20th, and, according to their testimony, he told them to "go ahead, start in the morning"; indeed, appellant Olsen himself testified:

"Q. Later in the afternoon you told the Wasson boys to go ahead in the morning? A. Yes. Q. And they did go ahead? A. Yes, sir. Q. And you knew they were going to go ahead with the work? A. Yes, that is right. Q. And they did it with your consent and knowledge and agreement? A. Yes, sir. Q. Your permission? A. Yes, sir. Q. Pursuant to your agreement with them? A. Yes. I wanted to tell them that they were supposed to see Logozo about the place of the dump, and also the dump man. Q. Well, the Wasson boys were doing business with you? A. Yes, sir. Q. Not with Logozo? A. Yes, sir, but I asked the Wasson boys to do it. . . . Q. Well, you told the Wasson boys what areas you wanted filled with dirt so you could start the work? A. That is right."

[1] The issue, under the evidence, is resolved to this: When was the oral contract repudiated by appellants? According to their theory, it was repudiated on September 18th, before any material had been delivered and accepted. According to the evidence most favorable to respondent, it was not repudiated before nine o'clock on September 21st, after a substantial amount of material had been delivered pursuant to the order given by Olsen on the afternoon of September 20th.

Under the authorities, the evidence was clearly sufficient to warrant the jury in finding that appellants accepted delivery of a part of the "goods" pursuant to the terms of the contract, thus bringing it within the exception of § 5836-4, subd. (3). AdamsCounty Mercantile Co. v. Walla Walla Livestock Co., 64 Wash. 285,116 P. 669; Hosner v. McDonnell, 114 Wash. 489,195 P. 231; Hance v. Frame, 141 Wash. 50, 250 P. 456.

Judgment affirmed.

BEALS, C.J., and MILLARD, J., concur.