Northwestern Debenture Co. v. Thurmond

Bridges, J.

By the terms of a written contract, J. M. Nichols & Company agreed, for a certain fixed compensation, to make certain alterations and repairs upon a building located in the city of Tacoma and owned by the defendant. The contract, among other things, provided that Nichols & Company should furnish and install one hundred and twenty-four square feet of skylight. Either immediately before or during the performance of the work, there was an oral agreement between the parties whereby Nichols & Company were to do certain extra work on the building. The work being finished, the contractors claimed that the defendant owed them, mostly on account of work done under the verbal contract, a balance of $221.95. They assigned their claim against the defendant to the Northwestern Debenture Company, a corporation, which brought this action.

The defendant, by answer, denied that it was indebted to the plaintiff and affirmatively alleged that, by the terms of the contract, Nichols & Company were required to furnish and install one hundred and twenty-four square feet of skylight, and that they only installed ninety-six square feet of such light, and that the cost of this difference should be offset against any amount which might be found to be owing to the plaintiff. The defendant did not seek any judgment on his counterclaim. The case was tried by the court without a jury, and judgment for a small sum was made and entered against the defendant, who has appealed therefrom.

The respondent has not favored us with any argument or brief. One of the chief grounds for reversal is the charge that the court’s findings of fact do not comply with the law in that they are fragmentary and wholly insufficient. It may be conceded that the findings are not so elaborate as they might have been, but we are frank to say that they are probably as full and complete as the amount involved in the litigation justified. The judgment in favor of the respondent grew out of extras which were not covered by the written contract. We have carefully examined the record and are satisfied with the court’s finding and judgment in that regard.-

The court seems, however, to have refused to allow any offset with reference to the skylight, holding that the amount installed by Nichols & Company was the amount agreed to be installed by the terms of the written contract. A careful examination of the testimony shows that the court was in error in this conclusion. We are confident that only ninety-six square feet of skylight were installed. The testimony shows that the cost of installing the additional skylight would have been fifty-six dollars. This amount should have been deducted from any amount found to be due respondent. The amount which should have been deducted was more than the sum found to be due and owing to the respondent. The result is that the respondent should not have recovered. The judgment is reversed, with directions to enter an order dismissing the action.

Parker, C. J., Mackintosh, Fullerton, and Holcomb, JJ., concur.