Citation Numbers: 145 P. 1072, 74 Or. 525, 1915 Ore. LEXIS 356
Judges: Bean, Moore, Eakin, Harris
Filed Date: 1/12/1915
Status: Precedential
Modified Date: 10/19/2024
1. The proposition involved is plainly stated by counsel for defendant in their brief as follows:
"The only theory upon which the appellants can successfully maintain this appeal is that their complaint states facts showing that the respondent abandoned the original contract, or by its acts prohibited the appellants from performing the contract according to the terms thereof, and that an entirely new contract was by law impliedly entered into, and further that the unit agreement of compensation would not govern."
It would seem that the first position taken by counsel in regard to the itemized statement of account sued upon indicates that the complaint was understood. No objection was taken to the statement filed. The further motion to make the complaint more definite and certain which was allowed by the court in effect required the plaintiffs to change their form of action to one strictly for damages for a breach of the contract. We think the facts alleged in the complaint show that the contract between the parties was deviated from in material particulars, so that all its terms would not *Page 531 apply to the construction of the work as completed. An extended discussion of the facts alleged would not be of assistance in the trial of the cause, as they might appear different from the evidence introduced.
The main question is: Can plaintiffs, under the facts shown in the complaint, maintain an action for the reasonable value of the work performed? It is stated in 4 Elliott, Contracts, Section 3697, as follows:
"Sometimes it happens that the original contract has been deviated from in so many matters that it can hardly be regarded as controlling the parties at all, and in such cases the original contract is often treated as abandoned, and a new contract is implied to pay the fair or reasonable value of the work or materials.
* * So, again, in Vermont, ``where the parties under a special contract deviate from the original plan agreed upon, and the terms of the original contract do not appear to be applicable to the new work, it being beyond what was originally contemplated by the parties, it is undoubtedly to be regarded and treated as work wholly extra, out of the scope of the contract, and may be recovered for as such. * *'"
A subsequent departure from the terms of a written contract by the parties and mutually acquiesced in abrogates the original contract to that extent: Zanello v. Iron Works,
2. Paragraph 42 of the specifications specially provides that the estimate of quantities included in the contract and in the contemplation of the parties must
be understood to be only approximate; that such estimates were assumed on the basis solely for the purpose of comparison of bids; and that no claim could *Page 532 be made by the successful bidder against the water commission which represented the City of Astoria, on account of any excess or deficiency in the same. The specifications also required the bidders to visit the location of the works and satisfy themselves as to the nature of the materials and as to all local conditions. They also provided that the contractor should not be entitled to any compensation for delays or hindrances to his work for any cause whatever, but allowed for extensions of time for such unavoidable delays as might result from causes that in the opinion of the water commission were beyond the control of the contractor, but the latter was required to give notice for all requests for extension.
It is contended by counsel for defendant that the plaintiffs, while setting out the contract, utterly abandoned it and are now attempting to recover the reasonable value of the services performed; that according to the terms of the contract the plaintiffs are not entitled to any extra compensation. With this contention we are unable to agree. We think the following rule applicable: Even though the engineer is given full power to supervise and manage the work, he cannot so conduct the same as to retard its progress or prevent the performance of the contract, no matter how seemingly broad his power may be:Dubois v. Delaware Hud. Canal Co., 4 Wend. (N. Y.) 285; Del.Genovese v. Third Ave. R. Co.,
3, 4. If the defendant deemed the itemized statement of account filed by the plaintiffs to be insufficient, a motion should have been made to make the same more *Page 534
definite and certain: Catlin v. Knott,
5. While Article VII, Section 3, of the Constitution, as amended by Laws of 1911, page 7, seems to contemplate that a cause should be settled upon one appeal, the record is somewhat incomplete for this court to render final judgment. If issue is joined, the action should be tried upon the merits.
The judgment of the lower court will therefore be reversed, and the cause remanded for such further proceedings as may be deemed proper not inconsistent herewith.
REVERSED.
Mr. Chief Justice MOORE, MR. Justice EAKIN and MR. Justice HARRIS concur.
*Page 540
Henderson Bridge Co. v. McGrath , 10 S. Ct. 730 ( 1890 )
National Contracting Co. v. Hudson River Water Power Co. , 192 N.Y. 209 ( 1908 )
Inland Construction Co. v. City of Pendleton , 116 Or. 668 ( 1925 )
Transbay Const. Co. v. City and County of San Francisco , 35 F. Supp. 433 ( 1940 )
Friberg v. Elrod , 136 Or. 186 ( 1930 )
northeast-clackamas-county-electric-co-operative-inc-a-corporation-v , 221 F.2d 329 ( 1955 )
In Re Swindle , 188 F. Supp. 601 ( 1960 )
Feldschau v. Clatsop County , 117 Or. 482 ( 1926 )
City of Portland Ex Rel. Donohue & Fleskes Corp. v. Hoffman ... , 286 Or. 789 ( 1979 )
Krieg v. UNION PACIFIC LAND RESOURCES CORPORATION , 269 Or. 221 ( 1974 )