Hayden v. Astoria , 74 Or. 525 ( 1915 )

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 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, 62 Or. 213 (124 P. 660);Pippy v. Winslow, 62 Or. 219, 224 (125 P. 298); City Messenger Del. Co. v. Postal Tel. Co., ante, p. 433 (145 P. 657). We think these rules apply to the case in hand, taking the allegations of the complaint as true.

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 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., 13 A.D. 412 (43 N. Y. Supp. 8);Salt Lake City v. Smith, 104 Fed. 457 (43 C.C.A. 637). The power of an engineer under a contract allowing him to increase or diminish the quantity of the work to be done in his discretion is limited to such changes as are contemplated by the" parties at the time the contract was made, and he cannot increase or diminish the quantities beyond this limit without paying the reasonable value for such changes:Cook v. Harms, 108 Ill. 151; Salt Lake City v. Smith, 104 Fed. 457 (43 C.C.A. 637); Dubois v. Delaware Hud. Canal Co., 4 Wend. (N. Y.) 285;National Contracting Co. v. Hudson River Water Power Co., 192 N.Y. 209 (84 N.E. 965); Henderson Bridge Co. v. McGrath, 134 U.S. 260 (33 L. Ed. 934, 10 Sup. Ct. Rep. 730). The changes alleged to have been made, in the one case where the work was increased 155 per cent, and in another as high as 500 per cent, must be considered as not being within the contemplation of the parties at the time of the execution of the contract for the construction of the work. Therefore, in regard to the dam as constructed by the direction of the engineers and accepted by the city, there was no meeting of the minds of the parties as to the amount of compensation. It is the rule that in carrying out a contract, whether time is of the essence or not, the owner cannot delay or retard the contractor in the progress of the work or prevent performance thereof without liability; and, where the owner under the contract is bound to furnish materials or do any other thing required to be done by him pursuant to the contract, he must do that thing in such a way as not to retard the contractor; and, if through the act or omission of the owner under such circumstances the work is delayed in such a way as to make performance impossible, the contractor can recover upon the quantummeruit: Cross v. Beard, 26 N: Y. 85, 88; Indiana Traction Co. v.Brennan, 174 Ind. 1 (87 N.E. 215, 223, 90 N.E. 65, 68, 91 N.E. 503);Standard Gaslight Co. v. Wood, 61 Fed. 74 (9 C.C.A. 362).

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 definite and certain: Catlin v. Knott, 2 Or. 321. Byits motion defendant wholly ignored this statement. No objection having been made to the same, it must be assumed to have been satisfactory to the defendant. This statement furnished upon defendant's demand was for the purpose of making the pleading of which it was a part more definite and certain. The second motion is inconsistent with the first. It was error for the court to ignore this statement and to sustain a motion which, in effect, required the plaintiffs to change the form and substance of their complaint to one purely for damages and dismiss the action.

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.